PETITION FOR REIMBURSEMENT OF EXPENSES AND COLLECTIVE COMMON BENEFIT FEE AWARD

Transcription

1 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 1 of 141 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA In re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 This Document Relates to: ALL CASES (including, particularly, Nos and ) MDL No SECTION: J JUDGE BARBIER MAGISTRATE SHUSHAN PETITION FOR REIMBURSEMENT OF EXPENSES AND COLLECTIVE COMMON BENEFIT FEE AWARD

2 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 2 of 141 Introduction Co-Liaison Counsel, the Plaintiff Steering Committee members, and eighty-eight additional Common Benefit Law Firms have, since April 20, 2010, dedicated over 527,000 hours and approximately $45 million to the common and collective benefits of plaintiffs in MDL No and other persons, businesses, and governmental entities affected by the Macondo / Deepwater Horizon disaster, contributing to a total of over $25 billion in recoveries to date including an estimated $10 to $13 billion in benefits to the members of the BP Economic and Medical Settlement Classes. Pursuant to the BP Class Settlements, the BP Defendants agree to pay, upon the occurrence of the Effective Date of the Economic & Property Damages Settlement, up to six hundred million dollars in common benefit expenses and attorneys fees, as may be approved and awarded by the Court. 1 The Effective Date of the BP Economic Settlement occurred on December 8, 2014, 2 when the U.S. Supreme Court denied cert. 3 The present Fee Petition is therefore respectfully submitted, in accordance with Paragraph 18 of Pre-Trial Order No. 59, 4 for the approval of the $600 million Common Benefit Cost and Fee Award that BP agreed to pay, consisting of: $37,597, in Shared Expenses, which have already been paid to third-party service providers and/or reimbursed to Common Benefit 5 Attorneys, pursuant to previous Court Order; 1 See BP ECONOMIC SETTLEMENT AGREEMENT, Exhibit 27 [Rec. Doc ], 2 and 4(e); (see also BP MEDICAL SETTLEMENT AGREEMENT, Exhibit 19 [Rec. Doc ], 2 and 4(e)). 2 See BP ECONOMIC AGREEMENT [Rec. Doc ], Section See BP Exploration & Production Inc. v. Lake Eugenie Land & Development, Inc., 135 S.Ct. 754 (2014). 4 Rec. Doc (See also Rec. Doc , a.) 5 See Rec. Docs. 8607, 9520, 10796, 11796, 12664, 13342, 13677, 14432, 15644, and (This $37,597, figure includes $1.8 million in current unreimbursed assessments advanced by the Co-Liaison and PSC firms for Shared Expenses which have been and/or are expected to be incurred in accordance with Pre-Trial Order No. 9.) Page 2

3 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 3 of 141 Up to $7,187, in claimed Held Expenses, which have been submitted to Mr. Garrett and the Fee Committee pursuant to Pre- Trial Order No. 9, (as amended), and Pre-Trial Order No. 59; and, The remainder of the BP Class Settlements Common Benefit Cost and Fee Award amount, of approximately $555.2 million, to Class Counsel and other Common Benefit Attorneys collectively, for work performed to advance the common and collective interests of the BP Economic Class and the BP Medical Class. This petition is made pursuant the terms of the Agreements with BP, in light of the District Court s inherent authority to award and to regulate reasonable attorneys fees in complex cases, 6 and to approve class counsel fees under Federal Rule of Civil Procedure 23(h). The litigation from which these class action settlements emanate is one of the largest and most complex in history. With just over a year from the formation of the MDL to complete all discovery and otherwise prepare for a massive two-phase comprehensive liability trial, dozens of Common Benefit Attorneys essentially gave up their entire practices to live and work in New Orleans on exclusively the Deepwater Horizon Litigation from (at least) the end of 2010 through (at least) the end of the Phase One Trial in April of 2013, and in many cases through the end of the Phase Two Trial in October of 2013, (and beyond). Completing over 300 depositions in just a few months, petitioners were called upon to navigate a complicated and largely untested landscape of competing federal statutory frameworks, potential state law applications, common, environmental and maritime law not only preparing and defending master pleadings, but also developing and funding a novel court-approved notice program, which allowed over 130,000 businesses, individuals, and local government entities, to file short-form joinders prior to the monition date. In addition to preparing the liability case and managing other legal and administrative matters for these litigants, the PSC and other Common Benefit Attorneys worked 2009). 6 See, e.g., ORDER (June 15, 2012) [Rec. Doc. 6684]; citing, In re Vioxx, 650 F.Supp.2d 549 (E.D.La. Page 3

4 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 4 of 141 closely with the U.S. Government and the States, while also protecting pro se and other claimants who were attempting to pursue claims in BP s Gulf Coast Claims Facility (GCCF) and other OPA claims processes. The landmark settlements themselves were and are uniquely beneficial and complex, providing a wide range of uncapped benefits to broad groups of litigants and other classmembers, under objective and transparent frameworks, with total payouts that are projected to be among the largest, if not the largest, in history. Indeed, the settlements turned out to be so favorable that Class Counsel and other Common Benefit Attorneys were then called upon to defend them against an unprecedented string of attacks that could not have possibly been foreseen at the time of the Fee Agreement with BP. Nor did the PSC and other Common Benefit Attorneys shirk from their responsibilities to try the case on liability, to ensure that the settlements were appropriately implemented by the Claims Administrators and Program Vendors, and to assist thousands of attorneys and pro se claimants with the submission, support, and appeal of Settlement Program Claims. The approximate $555.2 million fee award requested herein is only 6.59% of the total benefits paid under the BP Class Settlements to date, 7 and only 4.25% of the total estimated payouts under the two settlements. 8 7 See STATISTICS FOR DEEPWATER HORIZON ECONOMIC & PROPERTY DAMAGES SETTLEMENT (May 24, 2016) at p.3 [submitted herewith as Exhibit 11]; ORDER (Sept. 22, 2014) [Rec. Doc ]; ECON. SETTLEMENT AGREEMENT, Section 5.13; HERMAN-ROY DECLARATION (July 14, 2016) [submitted herewith as Exhibit 1] at 58-60, BP s Initial estimate, upon which the final settlement approvals were based, was $7.8 billion for both the Economic and Medical Classes together. The Seafood Claimants estimates of $ $12.1 billion and Judge Wilkinson s estimate of $ billion appear to be based solely on projected Economic Claims payouts, and do not seem to include Seafood & Tourism Promotional Grants, TO Insurance Proceeds, the value of the Assigned Claims, Medical Settlement Benefits, Administrative Costs, or Common Benefit Litigation Expenses or Fees. BP currently estimates that the Economic Settlement is likely to be significantly higher than $12.9 billion. See generally BP FIRST QUARTER 2016 RESULTS (April 26, 2016) [submitted herewith as Exhibit 12]; ALLOCATION AND REASONS [Rec. Doc ] (Dec. 11, 2015) pp.14-16; KLONOFF DECLARATION [Rec. Doc ] (Aug. 13, 2012) p The Medical Claims Administrator estimates an additional $170.3 million in total medical benefits paid. See HERMAN-ROY DECLARATION, 67. Page 4

5 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 5 of 141 The relief provided under the BP Class Settlements has already been fully and finally approved as fair, reasonable, and adequate 9 to the members of each class, 10 and the BP Defendants have agreed not to contest or oppose the requested approval and award of common benefit cost reimbursements and/or fees in the amounts sought herein. 11 For these reasons, and for the reasons further outlined below, petitioners Fee Petition should be granted. 9 Fed. Rule Civ. Pro. 23(e). 10 See In re Deepwater Horizon, 910 F.Supp.2d 891 (E.D.La. 2012), aff d, 739 F.3d 790 (5th Cir. 2014) ( Deepwater Horizon II ), rehearing en banc denied, 756 F.3d 320 (5 th Cir. 2014), cert. denied, 135 S.Ct. 754 (2014) (fully and finally approving Economic & Property Damages Class Settlement), and, In re Deepwater Horizon, 295 F.R.D. 112 (E.D.La. 2013) (fully and finally approving Medical Benefits Class Settlement) (appeal dismissed). 11 See BP ECONOMIC AGREEMENT, Exhibit 27, 2 and 6(d); (see also BP MEDICAL AGREEMENT, Exhibit 19, 2 and 6(d)). Page 5

6 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 6 of 141 Table of Contents Introduction Table of Contents Summary of Key Features and Challenges to the Litigation Factual and Procedural Background and Overview of Common Benefit Efforts. 11 Efforts Undertaken Prior to the Establishment of the MDL Establishment of the MDL thru December Initial Structure and Organization War Room / Document Depository Master Pleadings and Briefing Short Form Joinders and Notice of Monition Date Phase One and Two Liability Trial Prep and Discovery.. 26 Scientific, Environmental and Economic Development.. 30 Motion to Enjoin and/or Supervise the GCCF The Initial Establishment of a Hold-Back on Settlements The BP Economic Settlement, and Approval The Medical Benefits Settlement, and Approval Post-Settlement Implementation, Assistance to Classmembers, and Dispute. 53 Assistance to Classmembers The Matching / BEL Dispute BP s Attacks on the Economic Settlement BP s Dispute over the Medical Indemnity Agreement.. 61 The Chronic SPC Dispute Page 6

7 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 7 of 141 Development of the BELO Case-Management Order.. 62 Individual U.S. Fifth Circuit Claims Appeals The Phase One and Phase Two Liability Trials and Appeals The Phase Three Trial The Halliburton and Transocean Settlements The Government Settlements The OPA Test Cases Other Common Benefit Efforts The Fee Committee Review Process under Pre-Trial Order No The U.S. Fifth Circuit Has Endorsed a Percentage-of-Benefit Method for Awarding Common Benefit Fees, with a Lodestar Crosscheck The Fee that BP Agreed to Pay is Reasonable under the Percentage-of-Benefit Method 86 The Value of the Benefits to the BP Classes Is Likely to Exceed $13 Billion 88 The Requested Fee Falls Well Within the Benchmark Percentage.. 96 The Fee is Further Reasonable when Viewed within the Context of the Entire Litigation The Fee is Also Supported by an Hourly Lodestar Cross-Check List of Exhibits Conclusion Certificate of Service Page 7

8 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 8 of 141 Summary of Key Features and Challenges to the Litigation As outlined and discussed more fully herein, the instant litigation presented a number of significant challenges and hurdles to the Court-appointed PSC and other Common Benefit Attorneys, who developed several unique strategies and approaches to case management, negotiating strategy, and the litigation. Included among these challenges and features, for example, were: Size and scope. The Deepwater Horizon MDL would appear to be one of the largest, if not the largest, MDLs in history. In addition to the 130,000- plus formal civil actions and/or claims-in-limitation filed by private businesses, individuals and local government entities, the litigation also included claims for penalties under state law, and a smattering of privately instituted environmental, injunctive and regulatory claims. In addition to these formal civil actions and claims-in-limitation, there were hundreds of thousands of additional claimants in BP s former GCCF, and hundreds of thousands of additional class members who brought claims in the Economic and/or Medical Benefits Settlement Programs. Finally, the United States and the States of Alabama, Mississippi, Louisiana, Texas, and Florida asserted various actions, assessments and/or claims for various different damages and penalties, with which the PSC and Common Benefit Attorneys were called upon to coordinate, collaborate, account for, defer to, respond to, assist with, and/or otherwise accommodate, at various different levels, in a number of different ways. Complexity. The actions and claims relating to the Deepwater Horizon Incident stood at the center of three Federal Statutory frameworks the Oil Pollution Act, the Clean Water Act, and the Outer-Continental Shelf Lands Act as well as the MMS, U.S. Coast Guard, and EPA Regulatory frameworks, the general maritime law, and the civil penalty, criminal penalty, environmental, property, and punitive damage statutes and caselaw of Louisiana, Mississippi, Alabama, Florida and Texas. Many features of the Oil Pollution Act itself were largely unsettled, and resulted in substantial confusion regarding presentment, causation, displacement, claims against the Oil Spill Trust Fund, and the force and effect of Coast Guard decisions and/or regulations. The PSC was required to stay abreast of the insurance/indemnity/contribution disputes between and among Transocean, Halliburton and BP; the divisibility and subsurface discharge arguments raised by BP and Anadarko; the Hornbeck and ENSCO actions brought under the Administrative Procedures Act; Transocean s jurisdictional dispute with the Chemical Safety Board; and the securities actions being litigated in MDL No Common Benefit Page 8

9 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 9 of 141 Attorneys were also responsible for claims that were initially brought under the Endangered Species Act, the Emergency Planning and Community Right to Know Act, and CERCLA. Sacrifice by Common Benefit Attorneys. Because of the accelerated trial schedule, the PSC made the decision that Common Benefit Attorneys associated with the trial effort (and other major roles) would not be able to work remotely, (as is prevalent in these types of efforts today), but would be required to focus their full attentions on the Deepwater Horizon effort, working together, in New Orleans, from a full-scale War Room / Depository. Accordingly, many PSC members and other Common Benefit Attorneys were forced to essentially give up their entire practices, move to New Orleans, and live and work full-time on the BP Oil Spill Litigation. These lawyers spent days and weeks away from their homes and families, and years away from their law practices. This was particularly disruptive to solo practitioners, members of small law firms, and other rainmakers, who were not only diverted from existing matters, but were also unable to get involved in new projects, develop business, or take advantage of additional opportunities. This structure was not only demanding on the attorneys involved, but was also advantageous to the plaintiffs, due to the high level of collaboration and synergy. Organizational and Communications Challenges. While the provisions of OPA requiring BP as the Responsible Party to establish an interim claims process were undoubtedly beneficial to many of the affected parties, from a litigation standpoint, the GCCF and BP s other OPA claims processes presented considerable challenges to those attorneys who were responsible for conducting the litigation. Numerous plaintiffs and attorneys who would have otherwise filed suit and joined in the litigation, instead devoted their efforts to the extra-judicial claims processes, diverting resources from the common effort, and creating a significant disconnect from, ignorance of, or confusion regarding the status and requirements of the litigation. Many pro se litigants, and even several attorneys, were confused about the distinctions and the potential presentment, statute of limitations, claims filing deadline, scope and effect of releases, and other substantive and procedural risks and pitfalls between and among the initial BP OPA Claims Process, the GCCF, the Transocean Limitation Action, other civil actions in the MDL, BP Medical Settlement Program Claims, BP Economic Settlement Program Claims, Claims with the U.S. Coast Guard against the Oil Spill Trust Fund, and the post-settlement BP OPA Claims Process. Common Benefit Attorneys spent a significant amount of time and money on the Notice and Short- Form Joinder program, as well as other mass communications; the action against Mr. Feinberg to enjoin potentially misleading or confusing communications; responses to questions from claimants, attorneys, and Page 9

10 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 10 of 141 other claims preparers; the Supplemental Notice Program; and other assistance, particularly to pro ses. Trial Effort and Strategy. Despite the settlements, Common Benefit Attorneys engaged in a massive thirteen week two-phase trial effort on behalf of the Economic Class in pursuit of the assigned claims against Halliburton and Transocean, and with respect to the Expressly Reserved Claims of individual Economic and Medical Classmembers. Yet prior to the Class Settlements, (and contributing, we believe, to their level of success), the insistence, at the outset, of a two-fault allocation maximized the liability of BP with respect to the economic and environmental damages, and allowed the plaintiffs to align themselves with Halliburton and Transocean, which placed even more pressure on BP. Indeed, undersigned counsel cannot think of another case of this size and nature in which the plaintiffs and some of the defendants sat together at counsel table, as formally Aligned Parties, sharing expert witnesses and submitting joint proposed findings. In addition, because the Phase Two conduct was, by definition, corporate conduct under the P&L Boat Rentals test, a focus on these issues effectively gave the plaintiffs a second bite at the apple on punitive damages. At the same time, the PSC and its Trial Team shifted the Phase One focus to London- and Houston-based conduct, and worked closely with the U.S. and the States to ensure that gross negligence and willful misconduct was established, thereby placing the maximum amount of litigation pressure on BP. The Settlements Themselves Are Exceptional and Unique. As established in the voluminous record and findings on settlement approval, these settlements are, in terms of both their value and their structure, both exceptional and unique. First and foremost, they are uncapped, providing the classmembers with full compensation for their losses, and in most cases an additional punitive and/or future risk factor. The Seafood Compensation Fund was, as predicted, more than sufficient to provide the Seafood Program Claimants with full compensation (including RTPs), resulting in a billion additional dollars in distributions to the eligible classmembers. As to the other claims categories, each class member has or will receive full compensation, irrespective of what any other classmember may or may not receive, and without having to pay any common benefit fees or expenses. Secondly, the Economic Class Settlement was unique because it allowed claims to be processed and paid beginning in June of 2012, in advance and irrespective of the December 2014 Effective Date. Both class settlements, moreover, provided significant and beneficial grants to help the entire region rebound economically from the spill and to help build an infrastructure for the better delivery of healthcare to the affected communities. Finally, in terms of overall value to individual classmembers, the settlements have already Page 10

11 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 11 of 141 exceeded BP s initial estimates, and are projected to provide the largest class action payouts in American civil justice history. Unprecedented Level of Post-Settlement Implementation and Litigation. In some class settlements, class counsel are largely discharged of their responsibilities once the settlement is approved. In this case, by contrast, there was an unprecedented level of post-settlement common benefit effort. First, Class Counsel devoted numerous hours working with the Claims Administrators, the Program Vendors, the Special Master, the Court, and BP, on administrative and interpretive implementation issues. Second, Class Counsel devoted considerable time, money and effort to the education and assistance of pro se claimants, claims preparers, and other plaintiffs attorneys, in submitting and prosecuting settlement program claims and appeals. Finally, Class Counsel were called upon to respond to an unprecedented level of attacks and attempts by BP to back out of the settlement agreements. Common Benefit Attorneys devoted countless hours and considerable expense in responding to motions, injunctions, appeals, and petitions for certiorari filed by BP, which could not have been contemplated when the Fee Agreement was negotiated and signed in April of For these reasons, and for the reasons stated below, we respectfully suggest and request that the Court approve the entire $600 million in common benefit fees and expense reimbursements to which BP has fully and formally agreed. FACTUAL AND PROCEDURAL BACKGROUND AND OVERVIEW OF COMMON BENEFIT EFFORTS Shortly after the spill, various law firms who would eventually become Liaison Counsel, PSC members, Class Counsel, and other Common Benefit Attorneys, were contacted by existing clients and others seeking assistance and advice in connection with the Macondo / Deepwater Horizon explosions, fire, sinking, and resulting spill. Realizing that the effects of this disaster were likely to be far-reaching and long-lasting, these attorneys, from the beginning, started to coordinate with one another, and to take actions, not only for the protection of their own individual clients, but with an eye towards the advancement and protection of the common and collective interests of others who were likely to become prospective claimants or litigants at some point in time. Page 11

12 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 12 of 141 These lawyers monitored, attended, shared information and strategy regarding, and actively participated in: The Transocean Limitation Action, originally filed in the United States District Court for the Southern District of Texas, 12 and ultimately transferred, under Rule F(9), on motion of Common Benefit Attorneys, to the Eastern District of Louisiana, 13 where it could be tried as an original action, and consolidated with the MDL. 14 The Joint Investigation Team (JIT) / Marine Board of Investigation (MBI) hearings and other proceedings conducted by the U.S. Coast Guard and the Minerals Management Services (MMS) (later the Bureau of Ocean Management, Regulation and Enforcement (BOEMRE)). The La. Department of Environmental Quality Investigation. 15 The proceedings before the Judicial Panel on Multi-District Litigation (MDL Panel) (JPML). The securities-related actions that would eventually be transferred to and coordinated in the Southern District of Texas as MDL No The Hornbeck Offshore vs. Salazar litigation. 16 The consolidated actions in Section J of the United States District Court for the Eastern District of Louisiana. Working together, the lawyers developed a formal Limited Joint-Prosecution Agreement (JPA) to facilitate the coordination and sharing of information, research, and litigation strategy. They, among other things, provided advice and assistance to participants in the Vessel of Opportunity (VoO) program, secured important contractual concessions from BP, and attempted to ensure that such commitments would be formalized and extended to all potential VoO 12 No. 4:10-cv No Rec. Doc Enforcement Tracking Nos and , and Agency Interest No No (E.D.La. filed June 7, 2010). Page 12

13 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 13 of 141 participants. 17 Such attorneys also took efforts to ensure that clean-up workers were being properly protected from hydrocarbons and potentially dangerous dispersants. 18 The attorneys moved for the immediate and ongoing preservation of documents and physical evidence, and coordinated preliminary environmental sampling and testing in waters, beaches and wetlands along the Gulf Coast, and secured a shared sample of Macondo Oil from BP, for future fingerprinting purposes. 19 The attorneys conducted, and shared, preliminary legal research, took efforts to ensure that BP s claims process conformed to OPA statutory requirements, including statutory damages cap and presentment issues, and worked in a coordinated way with Mr. Feinberg to attempt to secure fair and reasonable protocols in the Gulf Coast Claims Facility (GCCF). 20 In addition to the coordinated submissions that were made to the MDL Panel, 21 these attorneys also responded to the motion and petition for mandamus seeking recusal. 22 In the consolidated Eastern District of Louisiana proceedings, Interim Co-Liaison Counsel were appointed to work with Defense Counsel, Counsel for the U.S., and the Court, on initial preservation of physical evidence issues, as well as other organizational and administrative 17 See, e.g., LTR. FROM J. KLICK TO BP COUNSEL (May 2, 2010); LTR. FROM BP COUNSEL TO J. KLICK (May 3, 2010); CONSENT JUDGMENT, No , Rec. Doc. 6 (May 4, 2010). 18 See, e.g., TRANSCRIPT (June 4, 2010), pp [No , Rec. Doc. 108]; MINUTE ENTRY (June 4, 2010) [No , Rec. Doc. 100]; BP LTR. RE WORKPLACE SAFETY (June 15, 2010) [No , Rec. Doc ]; TRANSCRIPT (June 17, 2010), pp [Nos , et al]; STIPULATION RE WORKER SAFETY (June 22, 2010) [No , Rec. Doc. 138]; BP LTR. RE SAFETY-RELATED DOCUMENTS (June 29, 2010) [No , Rec. Doc ]; LTR. FROM INTERIM LIAISON COUNSEL RE ENVIRONMENTAL AND SAFETY ISSUES (July 3, 2010) [No , Rec. Doc ]. 19 See, e.g., PRESERVATION ORDER (May 5, 2010) [No , Rec. Doc. 13]; TRANSCRIPT (May 25, 2010) [No , Rec. Doc. 75]; TRANSCRIPT (June 17, 2010), pp [Nos , et al]; LTR. FROM INTERIM LIAISON COUNSEL CONFIRMING AGREEMENT RE OIL SAMPLES (July 3, 2010) [No , Rec. Doc ]; MOTION TO COLLECT AND PRESERVE OIL SAMPLES (and Exhibits thereto) (July 22, 2010) [No , Rec. Doc. 358]. 20 MOTION FOR COURT SUPERVISION OF CLAIMS PROCESS (May 20, 2010) [No , Rec. Doc. 26]; JOINDER IN MOTION FOR COURT SUPERVISION (and Exhibits thereto) (May 21, 2010) [No , Rec. Doc. 45]; TRANSCRIPT (June 4, 2010), pp [No , Rec. Doc. 108]; EXHIBIT FROM BP WEBSITE (June 14, 2010) [No , Rec. Doc ]; TRANSCRIPT (June 17, 2010), pp [Nos , et al]; LTR. FROM INTERIM LIAISON COUNSEL TO BP COUNSEL RE NEW TRUST AND CLAIMS FACILITY (July 3, 2010) [No , Rec. Doc ]; MOTION TO COMPEL (and Exhibits thereto) (July 20, 2010) [No , Rec. Doc. 329]. 21 See, e.g., Rec. Docs. 27, 165 and 205, filed in MDL No (J.P.M.L.). 22 Fifth Cir. No (Opposition filed July 19, 2010). Page 13

14 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 14 of 141 issues, to provide structure and management to the litigation. 23 Establishment of the MDL thru December 2011 The MDL Panel transferred the litigation to the Eastern District of Louisiana on August 10, A pre-trial order setting the Initial Scheduling Conference was issued, 25 and Co- Liaison Counsel for the Plaintiffs were appointed. 26 Even prior to the formal appointment of the Plaintiff Steering Committee (PSC), Liaison Counsel collected joint-prosecution agreements and contact information from numerous plaintiffs attorneys, and started to develop group service lists, which were constantly tracked, supplemented, and updated. The firms established and organized all file materials, including pleadings, discovery, correspondence, administrative, and pro se materials, both in paper and electronically. Liaison Counsel secured office space for a Document Depository / War Room and began the process of arranging for IT services and fulltime personnel. There were several large meetings between and among Common Benefit Attorneys, who shared information and strategy, and provisional common benefit projects were commenced. 23 See generally, e.g., TRANSCRIPT (June 4, 2010) (Status Conference) [No , Rec. Doc. 108]; MINUTE ENTRY (June 4, 2010) [No , Rec. Doc. 100]; MINUTE ENTRY (June 7, 2010) [No , Rec. Doc. 115]; LTR. AGREEMENT AMONG INTERIM LIAISON COUNSEL FOR INITIAL BP DOCUMENT DEPOSITORY (June 11, 2010) [No , Rec. Doc ]; INTERIM STATUS REPORT (June 14, 2010) [No , Rec. Doc. 175]; STATUS REPORT (and Exhibits thereto) (June 16, 2010) [No , Rec. Doc. 127]; TRANSCRIPT (June 17, 2010) (Status Conference) [Nos , et al]; MINUTE ENTRY (June 17, 2010) [No , Rec. Doc. 136]; ORDER (June 21, 2010) (Preservation Order re Kinked Riser Section) [No , Rec. Doc. 180]; INTERIM CASE MANAGEMENT ORDER (June 21, 2010) [No , Rec. Doc. 134]; AMENDED CMO NO. 1 (June 25, 2010) [No , Rec. Doc. 141]; PLAINTIFFS PROPOSED INTERIM PROTECTIVE ORDER (June 30, 2010) [No , Rec. Doc. 148]; MINUTE ENTRY (July 2, 2010) [No , Rec. Doc. 232]; STATUS REPORT (and Exhibits thereto) (July 7, 2010) [No , Rec. Doc. 223]; MINUTE ENTRY (July 7, 2010) [No , Rec. Doc. 331]; PROTECTIVE ORDER (July 12, 2010) [No , Rec. Doc. 269]; TRANSCRIPT (July 27, 2010) (Hearing on Mot. for Preservation of Evidence) [Nos , et al]; MINUTE ENTRY (July 27, 2010) [No , Rec. Doc. 442]; TRANSCRIPT (Sept. 3, 2010) (Hearing on Mot. for Protective Order re BOP) [No , et al]. 24 Rec. Doc PRE-TRIAL ORDER NO. 1 [Rec. Doc. 2] (Aug. 10, 2010). 26 PRE-TRIAL ORDER NO. 6 [Rec. Doc. 110] (Aug. 27, 2010). Page 14

15 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 15 of 141 Liaison Counsel and other Common Benefit Attorneys continued to work with Defense Counsel, Counsel for the U.S. and the States, and the Court, to resolve initial evidence preservation issues, filing and service issues, and OPA-related issues, and to otherwise lay the foundations for what would become the essential administrative and procedural frameworks for the litigation, 27 including: the duties and responsibilities of the PSC (Pre-Trial Order No. 8), 28 the submission of common benefit hours and expenses (Pre-Trial Order No. 9), 29 the initial Case- Management Order (Pre-Trial Order No. 11), 30 the establishment of a mechanism for formal service via Lexis-Nexis File & Serve (LNFS) (Pre-Trial Order No. 12), 31 a confidentiality order (Pre-Trial Order No. 13), 32 an order regarding privilege (Pre-Trial Order No. 14), 33 electronic data and document production (Pre-Trial Order No. 16), 34 the development of the deposition guidelines (Pre-Trial Order No. 17), 35 stipulations regarding expert discovery (Pre-Trial Order No. 18), 36 and location of BP employee depositions (Pre-Trial Order No. 21) See, e.g., Rec. Doc. 66 (Extension of Deadlines to Effectuate Service); Rec. Doc. 80 (Interim Status Report); Aug. 20, 2010 Transcript (re Fishing Expedition ); Rec. Docs. 99, 107, 109, 125, 167 and Sept. 3, 2010 Transcript (re BOP Removal, Transfer, Storage and Preservation); Rec. Doc. 211 (re Subpoenas: Samples and Testing); Rec. Docs. 215, 230, 444, 474 (re Proposed CMO); Rec. Doc. 312 (re Sept. 16, 2010 Status Conf); and Rec. Doc. 463 (Omnibus Discovery Requests). See also, e.g., Rec. Doc. 509 (Omnibus Discovery Requests); Rec. Doc. 523 (Proposed Agenda for Oct. 15, 2010 Status Conf); Rec. Docs. 559, 587, 594, 631, 925 (re Presentment, GCCF, and Waiver of the Cap); Rec. Doc. 593 (re initial PTOs); Rec. Docs. 627, 642 (PPFs); and Rec. Doc. 741 (re Depo Protocol). 28 Rec. Doc Rec. Doc Rec. Doc Rec. Doc Rec. Doc Rec. Doc Rec. Doc Rec. Doc Rec. Doc Rec. Doc Page 15

16 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 16 of 141 An experienced Certified Public Accountant (CPA) who had been previously appointed to track common benefit time and expenses in the Vioxx and Chinese Drywall MDLs, 38 Philip A. Garrett, Sr., was retained and appointed, and a bank account was opened to handle shared expenses. An attorney noted for his experience in legal ethics and professionalism, Basile J. Uddo, was retained as outside ethics counsel. On October 8, 2010, the Court appointed the Plaintiffs Steering Committee and Executive Committee, charged collectively with the following tasks and responsibilities: Discovery (1) Initiate, coordinate, and conduct all pretrial discovery on behalf of plaintiffs in all actions which are consolidated with the instant multi district litigation. (2) Develop and propose to the Court schedules for the commencement, execution, and completion of all discovery on behalf of all plaintiffs. (3) Cause to be issued in the name of all plaintiffs the necessary discovery requests, motions, and subpoenas pertaining to any witnesses and documents needed to properly prepare for the pretrial of relevant issues found in the pleadings of this litigation. Similar requests, notices, and subpoenas may be caused to be issued by the PSC upon written request by an individual attorney in order to assist him/her in the preparation of the pretrial stages of his/her client s particular claims. (4) Conduct all discovery in a coordinated and consolidated manner on behalf and for the benefit of all plaintiffs. Hearings and Meetings (1) Call meetings of counsel for plaintiffs for any appropriate purpose, including coordinating responses to questions of other parties or of the Court. Initiate proposals, suggestions, schedules, or joint briefs, and any other appropriate matter(s) pertaining to pretrial proceedings. 38 MDL No and MDL No Page 16

17 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 17 of 141 Trial Miscellaneous (2) Examine witnesses and introduce evidence at hearings on behalf of plaintiffs. (3) Act as spokesman for all plaintiffs at pretrial proceedings and in response to any inquiries by the Court, subject of course to the right of any plaintiff s counsel to present nonrepetitive individual or different positions. (1) Coordinate trial team(s) s selection, management and presentation of any common issue, bellwether and/or test case trial(s). (1) Submit and argue any verbal or written motions presented to the Court or Magistrate on behalf of the PSC as well as oppose when necessary any motions submitted by the defendant or other parties which involve matters within the sphere of the responsibilities of the PSC. (2) Negotiate and enter into stipulations with Defendants regarding this litigation. All stipulations entered into by the PSC, except for strictly administrative details such as scheduling, must be submitted for Court approval and will not be binding until the Court has ratified the stipulation. Any attorney not in agreement with a non-administrative stipulation shall file with the Court a written objection thereto within five (5) days after he/she knows or should have reasonably become aware of the stipulation. Failure to object within the term allowed shall be deemed a waiver and the stipulation will automatically be binding on that party. (3) Explore, develop, and pursue all settlement options pertaining to any claim or portion thereof of any case filed in this litigation. (4) Maintain adequate files of all pretrial matters, including establishing and maintaining a document or exhibit depository, in either real or virtual format, and having those documents available, under reasonable terms and conditions, for examination by all MDL Plaintiffs or their attorneys. (5) Perform any task necessary and proper for the PSC to accomplish its responsibilities as defined by the Court s Page 17

18 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 18 of 141 orders, including organizing subcommittees or workgroups comprised of plaintiffs attorneys not on the PSC and assigning them tasks consistent with the duties of the PSC. (6) Perform such other functions as may be expressly authorized by further orders of this Court. 39 The Executive Committee and PSC enlisted the assistance of respected firms from around the Gulf and throughout the entire country who represented plaintiffs in the MDL and/or claimants in the GCCF process, and organized such Common Benefit Attorneys into Common Benefit Work Groups, including, initially: Administrative Work Groups Depository Privilege Electronic Discovery Summaries PR Legal Research & Writing Work Groups Maritime & Limitation Law & Briefing Briefing (general) Master Complaints (oversight) B1 Master Complaint RICO Work Group B3 Master Complaint Regulatory / Injunctive Work Group Written Discovery BP/MOEX/Anadarko Transocean Halliburton M1-Swaco Schlumberger Weatherford Cameron Third Party Science, Environmental and Damages Work Groups Economic Models / Property Damages Science & Experts Sampling & Testing 39 PRE-TRIAL ORDER NO. 8 [Rec. Doc. 506] (Oct. 8, 2010), pp.3-4. Page 18

19 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 19 of 141 Environmental Impact Ecological Impact Medical Monitoring Jurisdiction BP PLC Mitsui Triton Deposition and Trial Prep Teams Phase One Liability Depo Team Phase One Liability Expert Teams (by expert) Phase One Liability Depo Cut Team Phase Two Liability Depo Team Document Review Team Punitive Damages Corporate Culture & History Insurance GCCF Outreach Jurisdiction These working groups were originally comprised of 45 formal Work Group Coordinators, (of whom 33 were from non-psc firms), and 83 formal Work Group Members, (of whom 69 were from non-psc firms), who devoted significant time, and incurred significant out-of-pocket expenses, to conduct the common benefit work essential to the prosecution of these MDL proceedings. Pursuant to the Court s Order, each of these Common Benefit Attorneys were required to record time associated with their common benefit efforts contemporaneously, and to submit such time, along with any common benefit Held Expenses, to Mr. Garrett, who reviewed such time and expenses, under certain criteria, raising questions and rejecting unauthorized entries, on a Page 19

20 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 20 of 141 monthly basis. 40 In addition, the PSC, Co-Liaison, and the other Common Benefit Attorneys advanced over thirty-seven million dollars ($37 million) in assessments for Shared Expenses, which were generally paid as incurred, in accordance with the provisions of Pre-Trial Order No. 9, out of a Common Benefit Shared Expense Account. 41 Several additional Work Groups were established, and several additional Common Benefit Attorneys were enlisted, as the litigation progressed. At the same time, Common Benefit Attorneys worked closely with counsel for the United States and other plaintiffs, including, particularly, Coordinating Counsel for the States and his staff. 42 In addition to the formal Work Groups, outlined above, the PSC endeavored to reach out to all attorneys handling claims in the GCCF and/or actions in the MDL/Limitation, through various ListServes, CLE programs, and PSC-sponsored meetings to provide updates regarding the body of accumulated information regarding the environmental and economic issues, the GCCF process, liability issues, trial plan, and the progress of the litigation itself. Among other things, the PSC organized meetings and calls to gather facts and to discuss issues and strategies between and among counsel prosecuting VoO contract claims, oyster claims, real property claims, and other types of claims being prosecuted by GCCF claimants, plaintiffs, and putative classmembers. 40 See PRE-TRIAL ORDER NO. 9 [Rec. Doc. 508] (Oct. 8, 2010); (see also ORDER (amending PTO 9) [Rec. Doc. 1838] (April 1, 2011), and PRE-TRIAL ORDER NO. 56 (amending PTO 9) [Rec. Doc ] (March 19, 2014)). 41 Beginning in February of 2013, these Shared Expenses started to be reimbursed, per Court Order, out of the Common Benefit Cost and Fee Account that was established in connection with the BP Economic and Medical Class Settlements. (Note that, in one or two cases, the Shared Expenses were not technically advanced by Common Benefit Attorneys out of the Shared Expense Account; rather, the bills were incurred by Common Benefit Attorneys, but the vendors were ultimately reimbursed out of the Common Benefit Cost and Fee Account directly.) See generally, Rec. Docs. 8607, 9520, 10796, 11796, 12664, 13342, 13677, 14432, 15644, and Indeed, the Alabama Attorney General and his staff themselves submitted Common Benefit Time with respect to their common benefit efforts, pursuant to PTO 9. Page 20

21 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 21 of 141 Subject to the confidentiality provisions of Pre-Trial Order No. 13, Common Benefit Attorneys made the master set of deposition exhibits available to plaintiffs counsel via FTP Site. The PSC also established and maintained a website, for informational purposes, and made its Depository available to Coordinating Counsel for States and his staff, counsel for the United States, and counsel for the State of Louisiana. War Room / Document Depository The PSC unanimously decided at the outset to require document review and analysis, and other essential work, to be done in person, by lawyers, at the Depository, rather than remotely. Particularly given the ambitious deposition and trial schedule established by the Court, it was felt that this would be an important, if not necessary, step to enhance focus, to achieve certain efficiencies, and to gain the advantages of collaborative thought and other synergies. For those Common Benefit Attorneys contributing to the effort, this decision, at the same time, also required additional levels of sacrifice, which not only pulled them away from their offices, but in many cases required them to effectively re-locate to New Orleans, for a number of months, if not years, at considerable expense, and keeping them away from their homes and families. Such commitment and sacrifice were not limited to those attorneys responsible for the basic liability effort, but also extended to other Common Benefit Attorneys who worked day-in and day-out at the Depository on the environmental, economic, and other issues, including, ultimately, Phase Two. The MDL 2179 PSC Depository was located near the Federal Courthouse at the URS Building, 600 Carondolet Street, New Orleans, Louisiana. The PSC Depository encompassed the entire eighth floor, an area of approximately 15,500 square feet, including conference and Page 21

22 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 22 of 141 war rooms, individual offices, and over 70 dedicated computer workstations staffed on a fulltime basis. A second space on the Sixth Floor was obtained and used for private meetings with Counsel for the States, Counsel for the U.S., Defense Counsel, or others, and to discuss confidential settlement planning and strategy. Certain Common Benefit Attorneys were trained and certified as Administrators of iconnect, and were responsible for the training and certification of other Common Benefit Document Reviewers and other users. The PSC set up Trial Director cases which includes uploading all depositions, video files, and exhibits into Trial Director; as well as all hearing and status conference transcripts; uploaded and indexed numerous document productions; developed and provided instruction and guidance with respect to document and deposition coding for issues; and were responsible for preparing and maintaining various lists, including: Hot Doc List Exhibit List (and Objections) Witness List Witness Order Witness Exhibits Deposition Bundles submitted by all parties 43 The PSC established various FTP sites for: scientific and environmental articles; liability expert reliance and consideration materials; and other materials for plaintiffs counsel; and assisted in administering all users and passwords with access to same. In addition, PSC Websites, domain names, groups, and other communication devices were established, updated, administered, and maintained. 43 See, e.g., Rec. Docs. 2284, 2309, 4589, 4715, 4763, 4766, 4998, 5314, 8109, 8221, 8619, 9057, 9196, 9346, 10254, 10315, 10484, 11113, 11299, 11366, 11461, 11944, and Page 22

23 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 23 of 141 Attorneys and staff in the Depository assisted Common Benefit Attorneys in preparing for depositions, accumulating exhibits, and making witness outlines and exhibit binders, for both the Phase One and Phase Two Trials; assisted in the preparation and organization of deposition summaries and two-page summaries of all depositions; read and summarized almost seventyfive expert reports; were responsible for tracking of all of the trial exhibits, data entry into database; bates numbering, cleaning and redacting; and assisting in logging all admit information on when every exhibit was used and by whom. Out of the Document Depository, Common Benefit Attorneys tracked deposition designations and the preparation of Deposition Bundles, including marking and editing of approximately 200 depositions and deposition exhibits (Phase One and Two); tracking and coordinating same with the United States Department of Justice attorneys and the States; and were also responsible for logging data of trial admit information after all three Phases. In addition to the Trial Director cases, the Depository staff also set up laptops and bricks with all case information for use at depositions and trial throughout the entire litigation; synced information throughout Phases I, II and III, and the OPA Test Cases; and tracked all laptops and bricks by users. The PSC maintained all original depositions and electronic copies, with index, and developed comprehensive Evidence Memos for BP, Halliburton and Transocean for development into potential Trial Packages for any untried and unsettled cases. Despite the personal, professional, and financial sacrifices of many Common Benefit Attorneys, the collective real time, in-person approach was, we believe, more effective and more efficient; facilitated interaction; promoted the exchange of ideas among the group; yielded better insight and strategies; and enabled document review to maintain the pace required by the Court s schedule. Page 23

24 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 24 of 141 Master Pleadings and Briefing The Court adopted a series of innovative procedures for the pleading and resolution of the common factual and legal issues that would have to be tried within the Limitation proceeding and otherwise resolved within the pre-trial mandate for the broader Multi-District Litigation. Common Benefit Attorneys played a major role in proposing and implementing key elements of the case management plan, including the proposal for organizing the parties and claims into pleading bundles ; the preparation and filing of master and/or other bundle complaints; and the briefing and argument of motions to dismiss directed to these master and other complaints. Common Benefit Attorneys prepared and filed an original and amended B1 Bundle Master Answer to the Transocean Petition for Exoneration, Master Claim in Limitation, and Third-Party Class Action Complaint for plaintiffs asserting private economic loss and property damages claims, 44 an original and amended B3 Bundle Master Complaint for clean-up workers and others asserting claims for medical exposure injuries, 45 a RICO Class Complaint and RICO Case Statement, 46 and a D1 Bundle Master Complaint for injunctive claims for relief against private parties. 47 Common Benefit Attorneys then also prepared, filed, argued, and in some cases supplemented, Oppositions to the Motions to Dismiss that were filed with respect to these Master 44 Rec. Docs. 879 and Rec. Docs. 881 and The B3 Master Complaint also included breach of contract claims by many of these same workers in connection with the Vessel of Opportunity (VoO) Charter Agreements. 46 Rec. Docs (RICO Class Complaint), (RICO Case Statement) and (amended Case Statement). 47 Rec. Doc Page 24

25 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 25 of 141 Complaints, as well as Oppositions to Dismiss the Bundle A Claims, and a protective Motion to Strike Jury Demand. 48 Additionally, the PSC and other Common benefit Attorneys established a process for local governmental entities to join into a voluntary Local Government Master Complaint, 49 which was prepared by Common Benefit Attorneys, 50 and defended on Motions to Dismiss. 51 Once the Motions to Dismiss were decided, Common Benefit Attorneys then participated in the effort to develop, and ultimately defend, the Trial Plan. 52 Common Benefit Attorneys additionally organized and managed the VoO Charter Dispute Mediation Program, in which the parties agreed to select a sample of cases for motions, briefing, discovery, and mediation. 53 Short Form Joinders and Notice of Monition Date In connection with the B1, B3, and Local Government Master Complaints, Common Benefit Attorneys and the Court developed a process by which a pro se litigant or other person, business, or local government entity could file, directly, and without the necessity of formal service, a two-page Short Form Joinder in one or more of the Master Complaints, at no expense See, e.g., Rec. Docs. 1610, 1612, 1613, 1704, 1788, 1803, 1804, 1808, 1815, 1819, 1821, 2121, 2400, and MOT FOR LEAVE TO FILE VOLUNTARY LOCAL GOVT MASTER COMPLAINT AND SHORT-FORM [Rec. Doc. 1093]; PRE-TRIAL ORDER NO. 33 [Rec. Doc. 1549]. 50 Rec. Doc Rec. Doc See, e.g., Rec. Docs. 1951, 2130, 2658, 3998, and April 25, 2012 in camera submission. See also, OPPOSITION TO MANDAMUS PETITION, Fifth Cir. No (Nov. 7, 2011). 53 See, e.g., Rec. Doc (CMO), and Rec. Docs. 4035, 4474 (MSJ and Reply Brief). 54 See generally MOT. FOR ADOPTION OF SHORT FORM JOINDER [Rec. Doc. 882] (Dec. 15, 2010); PRE- TRIAL ORDER NO. 20 (Direct Filing) [Rec. Doc. 904]; PRE-TRIAL ORDERS NOS. 24 and 25 (Deeming Order, Short- Form Joinders, Plaintiff Profile Forms, Pleading Bundles, Responsive Pleadings, Master Complaints) [Rec. Docs. Page 25

26 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 26 of 141 Recognizing the importance of ensuring that all affected parties were aware of the Monition Deadline and the availability of the Short Form Joinder and encouraging them to take advantage of the device, the PSC committed approximately $1.7 million of its own money to conduct a Court-approved Notice Plan. 55 Common Benefit Attorneys made provisions and were themselves available to answer questions, and, at the Court s request, had representatives in the Clerk s Office as the deadline approached, to assist pro ses. 56 At the end of the day, approximately 130,000 individuals, business, and local government entities joined into the Limitation proceeding. 57 This effort was important to the common and collective interests of the litigation for three primary reasons: First, it allowed many plaintiffs, including many unrepresented plaintiffs, to protect and preserve their rights. Second, it provided plaintiffs collectively with more leverage by bringing a critical mass to the liability trial. Finally, it provided all Parties, and the Court, with a better census of and ability to manage the extant claims. Phase One and Two Liability Trial Prep and Discovery Millions of pages of documents were produced, loaded, and reviewed, for Phase One depositions, liability expert preparation, and trial. By October 2011, the PSC had already loaded approximately 15.7 million pages of documents into iconnect, with at least 20 million pages of 982 and 983]; and PRE-TRIAL ORDER NO. 33 (Local Government Short Form Joinder) [Rec. Doc. 1549]. Several of these orders were also amended from time to time, many with input from Mr. Herman, Mr. Roy, Coordinating Counsel, and Defense Liaison Counsel. See, e.g., Pre-Trial Orders Nos. 27, 44 and 52 (amending deposition protocol), Pre-Trial Order Nos. 28, 31 and 32 (amending PTOs 11 and 25), Case Management Orders Nos. 4 and 5 (amending the Trial Plan), Pre-Trial Orders Nos. 47 and 50 (amending PTO 13), Rec. Doc. 1838, Pre-Trial Orders Nos. 56 and 59, and Rec. Doc (amending and supplementing PTO 9), and Pre-Trial Orders Nos. 26, 46, 53, 55 (appointing Coordinating Counsel and re-appointing Plaintiffs Liaison, the Executive Committee and the PSC). 55 See, e.g., Rec. Docs. 1126, 1313, 1352, 1635 (re Court-approved Notice re Monition Deadline and FAQ for OilSpillCourtCase.com). 56 See also, e.g., Rec. Doc (Mot. Leave to File Additional Short Forms). 57 See generally, Civil Action Nos (Limitation Action), (Short Form Joinders), and (Local Government Short Form Joinders). Page 26

27 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 27 of 141 additional documents produced by the U.S. yet to be loaded, and additional documents arriving on a daily basis. (Over the course of the entire litigation, over 90 million pages of documents would ultimately be produced.) More than 70 document reviewers and analysts, including PSC members, members of their firms, and other Common Benefit Attorneys, reviewed and coded the documents, with a particular emphasis on the review of relevant custodial files produced in preparation for depositions. In addition, the PSC and other Common Benefit Attorneys collected, indexed and produced over 10,000 articles and other materials, as well as voluminous reliance documents in association with the Phase One Liability Expert Reports. Judge Shushan presided over weekly Discovery Conferences, where Liaison Counsel, the Phase One Trial Team, and other Common Benefit Attorneys worked collaboratively with Counsel for the U.S., Counsel for the States, Defense Counsel, and the Court, to resolve the hundreds of scheduling, discovery, and other pre-trial issues and disputes recognizing, at all times, that the added demands and burdens of this type of litigation place a premium on professionalism, and attempting to act as advocates in a manner that will foster and sustain good working relationships among fellow counsel and the court, and to communicate constructively and civilly with one another and attempt to resolve disputes informally as often as possible. 58 Counsel wrote literally scores of letter briefs to Judge Shushan and/or Opposing Counsel; communicated daily with counsel via regarding production and other logistical issues; and otherwise worked, each week, between the Discovery Conferences, to either resolve old issues or follow-up on new ones PRE-TRIAL ORDER NO. 1, p.2; MANUAL FOR COMPLEX LITIGATION (Fourth), 10.21, pp See generally LIST OF STATUS AND DISCOVERY CONFERENCES [Exhibit 18]. Page 27

28 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 28 of 141 Starting in the early Spring of 2011, an intensive and unrelenting deposition schedule commenced. For approximately six months, there were typically two tracks of depositions, daily, reaching a climax in the summer of 2011, with seven depositions conducted, on two continents, in one day. To facilitate the efficient conduct of the London depositions, for approximately one month in June 2011, the PSC maintained a branch depository office at the London deposition building where the London office of Kirkland & Ellis International, LLP is located and the depositions were taken. By the end of 2011, over 240 fact witness depositions had been taken, with 50 additional depositions of Phase One liability experts. 60 MONTH PHASE ONE DEPOSITIONS & DAYS OF TESTIMONY TOTAL NUMBER OF DEPOSITIONS CALENDAR DAYS OF TESTIMONY DEPOSITION DAYS PER MONTH January February March April May June July August September October November December January February TOTAL DEPOS 187 CALENDAR DAYS OF DEPO TESTIMONY 434 DAYS 1 Day Depos = 188 Days 2 Day Depos = 123 (246 Days) 60 See generally LIST OF DEPOSITIONS [Exhibit 15]. See also PHASE ONE (a snapshot) [Exhibit 17]. Page 28

29 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 29 of 141 MONTH EXPERT DEPOSITIONS PHASE ONE EXPERT DEPOSITIONS & DAYS OF TESTIMONY NUMBER OF EXPERT DEPOSITIONS CALENDAR DAYS OF EXPERT TESTIMONY EXPERT DEPOSITION DAYS PER MONTH January February March April May June July August September October November December January February EXPERT DEPOS 35 CALENDAR DAYS OF EXPERT TESTIMONY 90 Days 1 Day Depos = 40 2 Day Depos = 25 (50 Days) DEPOSITION EXHIBITS, HOURS OF VIDEO & PAGES Exhibits, Video Hours & Pages of Testimony # Total Deposition Exhibits 7407 Total Estimated Hours of Video 2739 Total Deposition Pages 130,642 In addition to the discovery issues, Judge Shushan and the Parties also engaged in substantial efforts in preparation of the then-scheduled February 2012 Phase One Trial. Common Benefit Attorneys selected a List of 300 key trial exhibits, for the purpose of identifying and briefing a representative group of evidentiary objections that were likely to come Page 29

30 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 30 of 141 up at trial. 61 A total of 50 motions in limine were filed by the parties between September 30, 2011 and the initially scheduled trial date in 2012, including topical motions, Daubert motions, and issues regarding the admissibility, inferences, or other effects of 30(b)(6) depositions and witnesses invoking the Fifth Amendment. 62 The Parties also worked with Judge Shushan on a set of stipulations. 63 Liaison Counsel worked with Alabama counsel, Counsel for the U.S., and Counsel for the Defendants to interview potential vendors, and to otherwise arrange for evidence management and in-court presentation. Common Benefit Attorneys also made designations and counter-designations to over 150 depositions, and assembled Depo Bundles for submission to the Court in advance of trial, including a two-page summary that was authored and submitted by the PSC for each deposition witness. Scientific, Environmental and Economic Development From the outset, dedicated groups of Common Benefit Attorneys focused on the oil spill s environmental and ecological impacts and the damages flowing therefrom. They retained a robust data collection team of consultants and staff to ensure that all relevant data would be available and accessible for the experts, and ready to take samples in the event of any reported oiling event. Particularly in light of BP s premature statements that Macondo Oil had been captured, dissipated, or degraded by weather and microorganisms, it was vital to the successful 61 See, e.g., Rec. Docs , See, e.g., Rec. Docs. 4158, 4443 (Plaintiffs Motion in Limine and Reply Brief regarding alleged U.S. Government Fault ); Rec. Docs , 4484, 4648, , 5258, 8357, 8358, 8360, (Opposition to the Motions in Limine on Other Incidents and Prior Bad Acts, the Baxter Investigation, and Hayward Testimony; Rec. Doc (Opposition to the Motions in Limine re Subsequent Remedial Measures); Rec. Doc (Opp. Perkin Mot in Limine); Rec. Doc (Opp. Mot. to Exclude Phase Two Evidence from Phase One); Rec. Doc (Opposition re Adverse Inferences on Fifth Amendment). 63 Rec. Docs. 5535, Page 30

31 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 31 of 141 prosecution of the cases in the MDL to have world-renowned scientific experts who could credibly, forcefully and with robust scientific backing refute these insupportable statements by BP. Through the date of the BP Class Settlements and beyond, the team of scientific, environmental, and economic and accounting experts assembled by the PSC worked over the course of years to demonstrate the actual volume of discharge, movement of the oil, and damage caused by that oil to the businesses and properties in and around the Gulf; to businesses that rely on Gulf products; to people who rely on the Gulf for subsistence; to the natural resources (including shorelines, sea life, marshes and beaches) shared by citizens of the U.S. and the States; to local tax revenues; and to numerous other injured claimants-in-limitation, GCCF claimants, and parties to the MDL pleading bundle complaints. An overall Science Group was established to oversee and coordinate the five science and environmental Work Groups. The core members of the Group consisted of attorneys from seven law firms, fulfilling numerous roles, including: Investigating reports and, where appropriate, documenting, recording, collecting and maintaining samples; Identifying potential expert witnesses and/or consultants on myriad science issues; Conducting a comprehensive literature and background review of each of the identified potential expert witnesses; Interviewing potential experts who passed the vetting process; Retaining qualified experts in the dozens of fields relevant to proving the claims in the master bundle complaints; Compiling a notebook of qualified and retained experts in myriad fields of expertise relevant to the oil spill for review by any MDL attorney at the PSC depository; Page 31

32 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 32 of 141 Evaluating and approving studies relevant to the task of proving environmental and ecological injury and damage to the plaintiffs in the MDL; Developing and maintaining a library on all scientific studies and anecdotal articles that address the Macondo Spill s environmental and ecological impacts; Reviewing and organizing scientific literature which may validate an expert s methodology, or otherwise provide the basis of his or her reliance list; and, Compiling, assimilating, and mapping publicly available and other reports of oiling events, SCAT team data, fishery closures, in situ burning, Notices to Mariners, and other evidence regarding the fate and transport of oil; The Science Group and other Common Benefit Attorneys interviewed over 200 potential scientific experts leaders in their fields of expertise to ensure a top-rated group of experts with relevant experience for the MDL. This initial task was particularly challenging, as the list of experts knowledgeable about deepwater oil spills is small. It has required delving into issues such as (1) quantifying the oil that flowed from the riser; (2) quantifying the oil that reached and will continue to reach the surface; (3) determining the effect of the dispersant on oil coming out of the riser; (4) quantifying the oil that remains in the Gulf; (5) determining the likely quantity and location of oil from the oil spill that will surface in the form of oil slicks, tar balls or tar mats in the future; (6) evaluating the oil spill s impacts on the populations and the health of Gulf sea life and the Gulf ecosystem as a whole; and (7) determining the length of time the environmental and ecological impacts will continue. In addition, a Medical Monitoring Work Group not only researched and briefed the legal issues, but collected anecdotal evidence and evaluated more scientific studies and reports regarding the potential health effects of hydrocarbons and dispersants. Page 32

33 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 33 of 141 Common Benefit Attorneys, at the same time, also attempted to facilitate communications, information and strategy sharing between and among the States, and the scientific library was made available for review by, not only Common Benefit Attorneys, but also other private attorneys, local governments, the U.S., and the States. In addition to the environmental and ecological effects, Common Benefit Attorneys followed a similar process to identify, vet, interview, and retain experts in economics and accounting, to develop models that would capture, quantify, and provide support for the common and individual economic effects of the Spill, including loss of profits and/or earnings opportunities across many different segments of the economy, and other losses to businesses and/or properties. As in the case of environmental and ecological issues, Common Benefit Attorneys also reviewed, collected, organized, and compiled studies, articles, and other research regarding the economic effects of the Spill, and other wider economic issues or analyses, which would form the basis of potential economic damage models and/or methodologies. These efforts by the Science, Environmental, and Economic Work Groups laid the ground work for not only the Frameworks and Matrixes contained within the BP Economic and Medical Settlements, but also the subsequent effort to defend those settlements and methodologies when attacked by BP. Motion to Enjoin and/or Supervise the GCCF As part of the broader effort to organize and preserve class action claims within the MDL proceedings, Common Benefit Attorneys believed that it was necessary and appropriate to protect the procedural interests of putative class members who were processing claims in the BP Gulf Coast Claims Facility (GCCF) as a statutory condition precedent to the assertion of an OPA claim in court. Page 33

34 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 34 of 141 The PSC and other Common Benefit Attorneys made substantial efforts to attempt to ensure that the procedures and protocols within the GCCF were both fair and consistent with BP s statutory obligations, and that claimants pursuing claims in the GCCF were aware of the nature of the relationship between Mr. Feinberg and BP. After substantial briefing by Common Benefit Attorneys, 64 the Court ordered Mr. Feinberg to stop referring to himself as independent and to further abide by the prevailing rules and standards imposed on lawyers with respect to communications with adverse and unrepresented parties. 65 The PSC, through the time of the BP Class Settlements, continued to monitor the GCCF process, and filed a Supplemental Brief in Support of Supervision Over the BP Interim Claim Process, to ensure compliance with OPA, and to make findings and/or recommendations regarding the satisfaction of OPA s presentment requirements and the scope and/or efficacy of releases. 66 Working with the GCCF, the Court, claimants, and others, to improve the fairness and efficiency of BP s GCCF process, the Common Benefit Work Groups provided a substantial common benefit to all claimants even those who were not actively engaged in the MDL. The Initial Establishment of a Hold-Back on Settlements Towards the end of 2011, with the Phase One Trial fast approaching, the PSC submitted a Status Report and Motion to Establish Account and Reserve for Litigation Expenses. 67 By that time, 340 lawyers from 90 different firms had invested over 230,000 hours and contributed over 64 See Rec. Docs. 912, 1021, and See Rec. Doc See Rec. Doc See Rec. Doc (Nov. 7, 2011). Page 34

35 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 35 of 141 $13 million in out-of-pocket held and shared expenses for the common benefit of claimants and litigants affected by the Macondo / Deepwater Horizon disaster. The PSC had created a voluntary hold-back on GCCF, personal injury, or other settlements involving PSC clients, and was working under agreements with the States of Alabama and Louisiana that entitled Common Benefit Attorneys to be awarded up to 4% of the State of Alabama and Louisiana s recoveries, in recognition and consideration of the common benefit contributions to any judgment or settlement that might be obtained. 68 Following a number of objections, supplemental briefing, negotiations, and proposed amendments, the Court issued a Hold-Back Order which ultimately directed the defendants to hold back and place into escrow, from any judgment or settlement after December 30, 2011: Six Percent (6%) of the recoveries of any private claimants or plaintiffs who, at any time, had an action that was filed in, removed to, or transferred to, the MDL; Four Percent (4%) of the economic loss damages payable to the States of Alabama and/or Louisiana; Four Percent (4%) of the recoveries of any Local Government Entities located within the State of Alabama and/or the State of Louisiana, that, at any time, had an action that was filed in, removed to, or transferred to the MDL; Six Percent (6%) of the recoveries of any Local Government Entities in the States of Mississippi, Florida, and/or Texas, that, at any time, had an action that was filed in, removed to, or transferred to the MDL; and, 68 The PSC was operating under agreements with both the Attorney General and the Governor of the State of Alabama, and an agreement with the Governor of Louisiana, to which the Louisiana Attorney General, at that time, had not agreed. As noted by the Court, in originally granting the PSC s Motion in December of 2011: The Court has on multiple occasions encouraged the State of Louisiana to cooperate with the PSC and the State of Alabama insofar as their interests are aligned versus the Defendants in this complex MDL. Recently, after it became clear that the State of Louisiana was unable to comply with several orders of this Court, the PSC reached out and offered its technical assistance to assist the State with its ESI production obligations. Notably, it apparently required the intervention of the Governor of Louisiana for this to occur. In fact, the Governor s office and the PSC have reached an agreement to work collaboratively to pursue their common interests. HOLD-BACK ORDER [Rec. Doc. 5022], at p.2. Page 35

36 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 36 of 141 Six Percent (6%) of the economic loss damages payable to the States of Florida, Mississippi, and/or Texas, should they ever file actions in, be removed to, or be transferred to, the MDL. 69 In support of its order, the Court noted that the PSC s motion sets forth in great detail the tremendous amount of work, and the large investment of money that the PSC has advanced since the creation of this MDL in August 2010, and observed that there can be no question that the PSC has taken seriously its fiduciary obligations in the best interests of all claimants, both private and governmental. 70 With respect to payments made by the GCCF, the PSC noted at the time that: While even some of the Oppositions suggest that the PSC and other Common Benefit Attorneys are likely entitled to at least some common benefit fee with respect to the approximately Six Billion Dollars already paid out by the GCCF, (and while reserving any rights to same), the Proposed Order, as currently presented, would only apply to judgments, settlements or other payments occurring after November 7, While it is possible that some payments are still being made on a mechanical or strict liability basis under the OPA scheme, the Responsible Party has had eighteen (18) months to evaluate and recognize OPA claims. Particularly given the broad GCCF Release, the Court s initial rulings on issues such as the availability of punitive damages under General Maritime Law and the viability of so-called Moratorium claims (heretofore not recognized by the GCCF), and the impending February 2012 trial date, it is reasonable to assume that GCCF settlements at this point are at least as much a function of litigation risk as they are a function of voluntarily compliance with OPA. Nor can it credibly be argued that the efforts of PSC and other Common Benefit Attorneys have not benefited persons and businesses (and 69 AMENDED HOLD-BACK ORDER (Jan. 18, 2012) [Rec. Doc. 5274]. See also, generally HOLD-BACK MOTION [Rec. Doc. 4507] and PSC STATUS REPORT AND MEMO IN SUPPORT [Rec. Doc ] (Nov. 7, 2011); REPLY BRIEF IN SUPPORT OF HOLD-BACK [Rec. Doc. 4717] (Nov. 23, 2011); SUR-REPLY BRIEF IN FURTHER SUPPORT [Rec. Doc ] (Nov. 28, 2011); LA. GOVERNOR S OFFICE MEMORANDUM IN SUPPORT OF THE PSC s REVISED HOLD-BACK ORDER [Rec. Doc. 4916] (Dec. 14, 2011); ORDER AND REASONS (Dec. 28, 2011) [Rec. Doc. 5022]; AMENDED ORDER (Jan. 4, 2012) [Rec. Doc. 5064]; JOINT MOTION BY ALABAMA, LOUISIANA AND THE PSC [Rec. Doc. 5230] (Jan. 17, 2012). 70 ORDER AND REASONS [Rec. Doc. 5022], at p.3. Page 36

37 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 37 of 141 in many cases their attorneys) prosecuting GCCF claims. Among other things, the PSC and other Common Benefit Attorneys: Challenged ambiguities in and other problems with the initial BP Claims Process; Ensured that BP Claims Process and GCCF forms and information would be provided in Spanish, Cambodian and Vietnamese; Ensured, both pre-gccf and within the GCCF, that payments to Vessel of Opportunity and other Clean-Up Workers would not be used as a set-off against, nor release of, claims for economic loss or other OPA claims; Met with Feinberg and others at the GCCF on numerous occasions, to make the claims process and methodologies more fair; Pursued motions and orders to assure fairness and accuracy in the communications provided by Feinberg and the GCCF to pro se litigants and represented parties; Developed and provided legal, scientific and economic information to be used in claims presentation and negotiations; Developed and confronted Feinberg and GCCF with legal, scientific and economic information; Participated in numerous community outreach and pro bono projects to educate claimants and attorneys regarding the GCCF claims process and assisting them with their claims; Pushed for OPA compliance; Pushed for the payment of interim claims; Challenged the scope and effect of the GCCF releases; Investigated, uncovered, documented, confronted the GCCF, and otherwise presented to the public, claimants and the Court delays, denials, inconsistencies, lack of transparency, and other individual and systemic problems or abuses within the GCCF; Participated in efforts with the U.S. Department of Justice and the States to audit the GCCF; Page 37

38 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 38 of 141 Provided a mechanism for, notice to, and assistance to both represented parties and pro se litigants with respect to the Short Forms, in order to preserve their rights in the event that they could not, and/or do not, gain complete relief within the GCCF; and, Exerted an enormous litigation pressure, risk, leverage and incentive for BP, through the GCCF, to try to settle its liabilities, in advance of trial. It would not be fair, it is respectfully submitted, for the plaintiffs who acted responsibly to preserve their rights before the Monition Date to bear the entire common benefit fee burden, (if any), while those who did not file in the MDL, but receive the same benefits, shoulder none of the responsibility. Nor would it be fair to allow plaintiffs attorneys, who are relying on the PSC and other Common Benefit Attorneys to develop the case and prepare it for trial, to pocket the entire attorney fee for themselves, by settling their clients cases with Feinberg through the GCCF on the eve of trial. 71 The Court agreed that Common Benefit Attorneys had, indeed, conferred a benefit to claimants receiving settlements from the GCCF, (although ultimately concluding that the court only had jurisdiction over GCCF payments with respect to a claimant who had a civil action or claim-in-limitation filed in, removed to, or transferred to, MDL No. 2179). 72 With respect to the bases for an assessment against settlements paid in the GCCF, the Court held as follows: The PSC has strongly advocated on behalf of persons submitting claims to the GCCF, continuing to apply public and private pressure to improve the GCCF claims handling operations. For example, the PSC has actively lobbied and argued for increased supervision and monitoring of the GCCF and Kenneth Feinberg/Feinberg Rozen, LLP... on February 2, 2011 the Court granted the PSC s motion (in part) and ordered the GCCF and BP to: 71 REPLY BRIEF (Nov. 23, 2011) [Rec. Doc. 4717], pp In 2015, all pre-bp Class Settlement funds that had been previously held back were released from escrow and refunded to the settling plaintiffs and/or their attorneys. Nevertheless, and to the extent that it might be relevant to the overall common benefit analysis, the PSC respectfully references its previous SUR-REPLY BRIEF [Rec. Doc ] (Nov. 28, 2011) in support of the Court s jurisdiction over the GCCF. Page 38

39 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 39 of 141 (1) Refrain from contacting directly any claimant that they know or reasonably should know is represented by counsel, whether or not said claimant has filed a lawsuit or formal claim. (2) Refrain from referring to the GCCF, Ken Feinberg, or Feinberg Rozen, LLP (or their representatives), as neutral or completely independent from BP. It should be clearly disclosed in all communications, whether written or oral, that said parties are acting for and on behalf of BP in fulfilling its statutory obligations as the responsible party under the Oil Pollution Act of (3) Begin any communication with a putative class member with the statement that the individual has a right to consult with an attorney of his/her own choosing prior to accepting any settlement or signing a release of legal rights. (4) Refrain from giving or purporting to give legal advice to unrepresented claimants, including advising that claimants should not hire a lawyer. (5) Fully disclose to claimants their options under OPA if they do not accept a final payment, including filing a claim in the pending MDL 2179 litigation. (6) Advise claimants that the pro bono attorneys and community representatives retained to assist GCCF claimants are being compensated directly or indirectly by BP. 73 Early on, the PSC successfully advocated on behalf of Vietnamese and other non-english speaking claimants, and convinced the GCCF to employ translated forms, instructions, etc. The PSC also arranged to make translators available to claimants. The PSC has advocated for a full and transparent audit of the GCCF and its claims handling practices, and together with the U.S. Department of Justice, has persuaded Mr. Feinberg to agree to such an audit which is now in progress. The PSC has advocated, again with some success, for the GCCF to employ a more liberal causation standard in evaluating claims and has advanced similar causation arguments in this MDL proceeding. 74 The PSC has successfully argued for the application of general maritime law and the possibility of punitive damages. 75 Although the GCCF does not pay punitive damages, the PSC 73 See ORDER AND REASONS [Rec. Doc. 1098] (Feb. 2, 2011), p See B1 ORDER [Rec. Doc. 3830] (Aug. 26, 2011), at pp See B1 ORDER, at pp Page 39

40 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 40 of 141 may be able to show that this finding enhances the settlement value of compensatory claims. Considering the unique circumstances of this case, it would be unfair to allow parties to benefit from these activities of the PSC, but avoid contributing to the common benefit fund simply because they are able to settle directly with the GCCF and avoid filing a claim in the MDL. Other parties have filed lawsuits or claims in this MDL, but then withdraw their claims once they have settled with the GCCF. Again, such parties have likely benefited from all of the common benefit work performed by the PSC. ORDER AND REASONS (Dec. 28, 2011) [Rec. Doc. 5022], pp.4-6. Nevertheless, and while over $20 million would be collected from GCCF and other settlements over the next few months, the hold-backs were ultimately released, the funds were returned, and no business, individual, or local government entity, (nor their own individually retained attorneys), would be required to make any common benefit cost contribution or pay any common benefit fee in this litigation. 76 The BP Economic Settlement, and Approval The Court is eminently familiar with the background and the substance of the Deepwater Horizon Economic & Property Damages Class Settlement with BP. 77 In sum, the settlement was intended to resolve most claims by private individuals and businesses for economic loss and 76 See ORDER (May 3, 2012) [Rec. Doc. 6428] (eliminating hold-back with respect to BP Class Settlement payments); ORDER (July 10, 2015) [Rec. Doc ] (eliminating hold-back with respect to State and Local Government settlements); ORDER (July 30, 2015) [Rec. Doc ] (refunding 6% hold-backs on Transition Payments); ORDER (Oct. 2, 2015) (amended April 11, 2016) [Rec. Doc (amended by Rec. Doc )] (disbursing remainder of funds from hold-back escrow account to plaintiffs/claimants and their attorneys). 77 See generally Transcript of Preliminary Approval Hearing (April 25, 2012) [Rec. Doc. 6395]; Class Final Approval Brief (Aug. 13, 2012) [Rec. Doc. 7104]; Herman Declaration (July 23, 2012) [Rec. Doc ]; Rice Declaration (Aug. 10, 2012) [Rec. Doc ]; Issacharoff Declaration (Aug. 13, 2012) [Rec. Doc ]; Klonoff Declaration (Aug. 13, 2012) [Rec. Doc ]; Godfrey Declaration (Aug. 13, 2012) [Rec. Doc ]; Class Reply Brief (Oct. 22, 2012) [Rec. Doc. 7727]; Klonoff Supp. Declaration (Oct. 22, 2012) [Rec. Doc ]; Transcript of Fairness Hearing (Nov. 8, 2012) [Rec. Doc. 7892]; Joint Proposed Findings (Nov. 19, 2012) [Rec. Doc. 7945]; Order and Reasons (Dec. 21, 2012) [Rec. Doc. 8138] (In re Deepwater Horizon, 910 F.Supp.2d 891 (E.D.La. 2012)); Herman Declaration (April 1, 2013) [Rec. Doc ]; Herman Declaration (Nov. 5, 2013) [Rec. Doc ]; Rice Declaration (Nov. 6, 2013) [Rec. Doc ]; Herman Declaration (Nov. 11, 2013) [Rec. Doc ]; Herman Declaration (Nov. 12, 2013) [Rec. Doc ]; Herman Declaration (Jan. 17, 2014) [Ex. 4 to Rec. Doc ] (filed Under Seal); Rice Declaration (Jan. 2014) [Ex. 5 to Rec. Doc ] (filed Under Seal); Herman Declaration (Oct. 15, 2014) [Rec. Doc ]; Roy Declaration (Oct. 15, 2014) [Rec. Doc ]; Fayard Declaration (Oct. 15, 2014) [Rec. Doc ]; Herman Declaration (March 9, 2015) [Rec. Doc , at 8-13]. Page 40

41 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 41 of 141 property damages resulting from the Spill. Memorialized by a 1,000-plus page document, the Parties negotiated and agreed to separate, detailed frameworks for the submission, evaluation and payment of nine basic categories of claims: (1) Business Economic Loss (BEL) (including frameworks for Multi- Facility Businesses, Start-Up Businesses, Failed Businesses, and Failed Start-Ups) (2) Individual Economic Loss (IEL) (3) Coastal Property Damage (4) Wetlands Property Damage (5) Sales Loss Damage (6) Vessel of Opportunity (VoO) Charter Payment Claims (7) Vessel Physical Damage and Decontamination (8) Subsistence Loss, and (9) Commercial Fishing Losses (i.e. the Seafood Compensation Program) Uniquely, and to the benefit of plaintiffs, the Agreement established a Settlement Program and Trust that would begin to process and pay eligible claims, beginning in June of 2012, prior to and irrespective of final class approval, subject to an Individual Release. 78 Class Members were allowed to submit multiple claims and to receive compensation for multiple categories of damage. 79 Certain discreet groups of individuals, entities and claims are specifically excluded from the Settlement. Otherwise, and generally, the individuals and entities located in Louisiana, 78 See generally, ECONOMIC AGREEMENT [Rec. Doc ], Recital H, Section 4, and Section See generally ECONOMIC AGREEMENT, Sections and Exhibits 4-14 Page 41

42 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 42 of 141 Alabama, Mississippi, the coastal counties of Florida, and the southeast corner of Texas, are subject to a broad and binding class-wide release. 80 Negotiated intensively over an eight-to-ten month period, the Settlement Agreement was intended to improve upon the GCCF, by not only recognizing claims that the GCCF did not pay, but also by requiring that decisions be made pursuant to transparent and objective frameworks, by a Court-appointed administrator, in a claimant-responsive and claimant-friendly way. 81 Indeed, the entire Settlement Agreement is designed to ensure that the Claimants will receive the highest possible level of compensation afforded under the frameworks, based on the documentation provided. 82 One of the central features of the settlement was and is a guaranteed $2.3 billion Seafood Compensation Fund to compensate commercial fishermen, with internal allocation and distribution frameworks and criteria developed by a Court-appointed neutral. 83 For existing businesses, economic loss claims are determined using a two-step process. Step One calculates the value of the business s reduction in profit during a claimant-selected loss period (any three or more consecutive months of the eight-month period following the spill). Step Two accounts for expected profits by estimating the business s growth trend along with a general, economy-wide growth factor. Step One (loss calculation) and Step Two (expected 80 The Class is Defined in Section 1 of the Settlement Agreement; see also Exhibit 22 (Map of Gulf Coast Area) [Rec. Doc ] and Exhibit 23 (Specified Gulf Waters) [Rec. Doc ]. The Class Release is found in Section 10 of the Settlement Agreement. In addition, any Claimant receiving compensation from the Settlement Program must first execute an Individual Release (Exhibit 26) [Rec. Doc ]. 81 ORDER AND REASONS [Rec. Doc. 8138] p.110 (In re Deepwater Horizon, 910 F.Supp.2d at ); see also, generally, ECONOMIC AGREEMENT, Sections 4.3.1, 4.3.7, 4.3.8, 4.4.7, 4.4.9, 6.1 and ECONOMIC AGREEMENT, Sections and See generally ECONOMIC AGREEMENT, Section 5.2 and SEAFOOD COMPENSATION PROGRAM (Exhibit 10) [Rec. Doc ]. See also, e.g., HERMAN DECLARATION [Rec. Doc ] at pp ; RICE DECLARATION (re Seafood Program) [Rec. Doc , at 13-18]; PERRY DECLARATION [Rec. Doc ]; BALHOFF DECLARATION (Aug. 12, 2012) [Rec. Doc ]; BALHOFF SECOND DECLARATION (Oct. 22, 2012) [Rec. Doc ]. Page 42

43 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 43 of 141 profit but-for the spill) are both factored into the business claimant s base compensation amount. 84 This base compensation amount is generally enhanced by a Risk Transfer Premium (RTP), and/or is offset by prior payments received, depending on the type of business and location. The Settlement also includes additional or alternative frameworks for multi-facility businesses, failed businesses, start-up businesses, and failed start-up businesses. 85 The Settlement Agreement also provided for a $57 Million Gulf Seafood and Tourism Promotional Fund, which made grants to organizations around the Gulf to promote seafood and tourism. 86 In addition, BP agreed that classmembers claims for punitive damages against Halliburton and/or Transocean would be Expressly Reserved, and that BP s own claims against Transocean and Halliburton would be assigned to the BP Economic & Property Damages Class as a whole. Moreover, BP agreed to turn over insurance proceeds that might be obtained from Transocean s insurers. At this point, these features have resulted in potential settlements of $337.6 Million for the Class on the Assigned Claims with Halliburton and Transocean, 87 as well as an additional $82 Million in Transocean Insurance Proceeds. 88 On December 21, 2012, the class settlement was certified under Rule 23(b)(3), and fully and finally approved as fair, reasonable, and adequate to the members of the Class under Rule 84 See generally Exhibit 4C [Rec. Doc ]. While the Settlement Program has generally offset a negative Step One calculation against a positive Step Two calculation, it was intended and agreed that these would be separate inquiries, and that a business claimant would be entitled to be compensated based on either a loss calculation, or an expected profit but-for the spill calculation, or (most typically) the sum of both. 85 See generally Exhibits 5-7 [Rec. Docs thru -15]. 86 See ECONOMIC AGREEMENT, Section ALLOCATION AND REASONS [Rec. Doc ] (Dec. 11, 2015). 88 See ORDER [Rec. Doc ] (Sept. 22, 2014) (memorializing deposit of $82.17 million in Transocean Insurance Proceeds into Class Settlement Trust). Page 43

44 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 44 of (e). In re Deepwater Horizon, 910 F.Supp.2d 891 (E.D.La. 2012). 89 The final approval order was affirmed on appeal by the Fifth Circuit on January 10, In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014) ( Deepwater Horizon II ). Rehearing en banc was denied in May of In re Deepwater Horizon, 756 F.3d 320 (5 th Cir. 2014). And the U.S. Supreme Court denied review in December. BP Exploration & Production v. Lake Eugine Land Development, et al, 135 S.Ct. 754 (2014). The Effective Date of the Settlement was thereby achieved on December 8, 2014, 90 establishing June 8, 2015 as the final Claims Deadline, and triggering the obligation to pay up to Six Hundred Million Dollars, in common benefit costs and attorneys fees. 91 In support of such approval, plaintiffs submitted, among other things, the expert testimony of Dean Robert Klonoff, who evaluated, among other things, the reasonableness of the common benefit attorneys fees provision. counsel have already put 384,000 hours into this case. Assuming they do not put in another hour, which is obviously an absurd proposition, and assuming the average hourly rate of $456 used in Enron, the lodestar amount would be $175,104,000; resulting in a lodestar multiplier (with fees of $570 million) of 3.26, far below the multiplier of 5.2 approved in Enron. 586 F.Supp.2d at 803; see also, e.g., In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465, 489 (S.D.N.Y. 1999) (lodestar multiplier of 3.97 in $1.027 billion settlement); In re WorldCom, Inc. Sec. Litig., 388 F. Supp. 2d 319, 354 (S.D.N.Y. 2005) (multiplier of 4 in $6.133 billion settlement); In re Cardinal Health Inc. Sec. Litig., 528 F. Supp. 2d 752, 767 (S.D. Ohio 2007) (multiplier of 5.9 in $600 million settlement). If counsel end up putting in 800,000 hours, the lodestar would be $364,800,000, resulting in a lodestar multiplier of 1.56, which is dramatically below the multiplier in Enron and far below the 3% 4.5% multipliers that are common in the largest class settlements (over $1 billion, known as super-mega-fund cases, see 122, infra). In re NASDAQ, supra, at 489 (citation and internal quotation marks omitted). Thus, the lodestar multiplier range here ( ) only 89 Found in the MDL docket as Rec. Doc (see also ORDER AND JUDGMENT [Rec. Doc. 8139] (Dec. 12, 2012)) 90 See BP ECONOMIC AGREEMENT, Section BP ECONOMIC AGREEMENT, Exhibit 27, 2, 4(e), and 6(d). Page 44

45 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 45 of 141 corroborates the reasonableness of the attorneys fees structure. Indeed, even using the $300 per hour rate, a lodestar cross-check would raise no concerns. Assuming 384,000 total hours, the lodestar would be $115.2 million and the multiplier would be Because all of these ranges support fees of $570 million, the Court need not await the final total of hours, and need not conduct a lodestar cross-check before giving its blessing to the fee agreement. * * * Looking beyond the dollar figures, this settlement compares favorably to its peers in a number of respects. Benefit to the Class. Perhaps the most exceptional feature of this settlement is not its sheer size, but rather the fact that class members can expect to recover full compensation for their injuries. This sort of recovery is virtually unprecedented, and is not a feature in any of the super-mega fund cases cited above, with the exception of AT&T, in which the award was 20% of the proceeds available to the class. For example, in Enron, the settlement was very large ($7.227 billion), but, as that court noted, the losses suffered by the class members were estimated to be much higher. As such, the Enron settlement, impressive as it was, ultimately recovered only a fraction (8.39%) of the decline in market capitalization resulting from the fraud alleged in that case. 586 F.Supp.2d at 775. Yet the court in Enron approved fees of 9.52%. Moreover, Enron itself noted that in WorldCom, the $6.133 billion settlement amounted to a mere 2.9% recovery in the decline of market capitalization. See id. at 775. The court in WorldCom awarded 5.5% in fees. In the Vioxx non-class aggregate settlement, users of Merck s painkiller Vioxx received much less than they could have received if they had been successful at trial. Almost by definition, settlement means compromise, and a plaintiff who settles will receive less than full compensation. That is why this case is so unusual. Here, class members can expect to be made whole by the settlement s compensatory benefits. Even in litigation, obtaining all of the relief to which a plaintiff is entitled is a challenge under the best of circumstances. For example, in the Vioxx litigation, some plaintiffs who went to trial ended up with nothing. But in the settlement context, full recovery is even less likely, because a settlement, by its very nature, usually means agreeing to accept less than full recovery in exchange for prompt and certain payment. Here, class members receive both promptness and full recovery, making this a truly exceptional case. Size of the Settlement. This estimated $7.8 billion settlement, if approved by the Court, would (according to my research) be the Page 45

46 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 46 of 141 largest class settlement in history. In my mind, this is a monumental achievement, not one to be denigrated by a mechanical rule that the fee percentage should be low when the settlement is large. Indeed, despite this achievement, the fee award under the proposed agreement is capped at $570 million ($600 million minus $30 million in costs to date), which is less than the $688 million in fees awarded in Enron (a case involving both a lower total settlement amount and a much lower percentage of losses recovered). Unique Aspects of this Case. In a literal sense, of course, every case has unique features. And certainly, cases in the super-megafund range are by definition unusual. Yet even among this rarified group of cases, the instant settlement stands out as unique. Most importantly, a large number of super-mega-fund settlements and other large settlements have been in securities cases. To be sure, securities fraud is a challenging and difficult area of the law, requiring great skill and effort. Yet, the catastrophic oil spill created legal, factual, scientific, and economic issues that were even more complex than those in most other kinds of class actions. And class counsel could not look to precedent to guide their strategy on most issues, because this case was truly unprecedented in magnitude and complexity. Based on the foregoing discussion, the anticipated award ($570 million based on a settlement worth $7.8 billion) is on the low end, even when examined in light of other mega-fund or super-mega-fund cases. Of course, the percentage could be even lower if the value of the settlement turns out to be greater than $7.8 billion. But even the high theoretical percentage (11.4%), which is very unlikely to occur, is well within the fee percentages in megafund and super-mega-fund cases. These ranges are especially reasonable here, given the benefits to the class, the unique complications of this case, and the fact that fees are being paid separately by BP. As shown above, the pertinent Johnson factors overwhelmingly support the proposed fee structure here. The attorneys, all of whom have superb reputations and abilities, have expended considerable time, and are expected to spend much more time, before the claims process is completed. The questions involved are novel and difficult, requiring enormous skill and impeding the lawyers ability to take on other work. Even the highest theoretical fee percentage of 11.4% is much smaller than the customary 33% in private contingency cases. The fee here is contingent, meaning the lawyers took a risk that they might receive no award. Because the case involved an environmental disaster, time was of the essence. The results obtained, as explained throughout this report, are impressive. And even the highest Page 46

47 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 47 of 141 theoretical fee award of 11.4% is comfortably within the range of awards in super-mega-fund cases. 92 At the time of final approval, however, the estimated value of the BP Economic and Medical Settlements was only $7.8 Billion. 93 In fact, as of this submission, over 120,000 claims totaling over $7.52 billion have been paid from the Economic Settlement alone, 94 plus an additional $57 Million in promotional grants, 95 with an additional $82 Million in Transocean Insurance Proceeds sitting in trust, 96 approximately $634 million remaining in the Seafood Fund, 97 and approximately 89,000 claims still in the process of being analyzed, supplemented, reviewed, reconsidered and/or appealed. 98 In performing the allocation for the Halliburton/Transocean Settlements, Judge Wilkinson estimated that the total payout would be $ billion, (although his estimate seems based solely on projected Economic Claims payouts, and would not seem to include Seafood & Tourism Promotional Grants, Transocean Insurance Proceeds, the value of the Assigned Claims, Medical Settlement Benefits, Administrative Costs, or Common Benefit Litigation Expenses or Fees). 99 BP now estimates that the Economic Settlement alone will be significantly higher than $12.9 Billion KLONOFF EXPERT REPORT (Aug. 13, 2012) [Rec. Doc ] 107 and See also KLONOFF SUPPLEMENTAL REPORT (Oct. 22, 2012) [Rec. Doc ] 21, and BP 2011 ANNUAL REPORT AND FORM 20-F, p.163 (available at bp_internet/globalbp/globalbp_uk_english/set_branch/staging/common_assets/bpin2011/downloads/bp_annual _Report_and_Form_20F_2011.pdf) (as of Aug. 5, 2012). 94 See STATISTICS FOR DEEPWATER HORIZON ECONOMIC & PROPERTY DAMAGES SETTLEMENT (May 24, 2016) p.3 (Table 4, Line 13) [These Program Statistics are submitted herewith as Exhibit 11]. 95 See ECONOMIC AGREEMENT, Section 5.13; HERMAN-ROY DECLARATION ORDER [Rec. Doc ] (Sept. 22, 2014). 97 See PROGRAM STATISTICS (May 24, 2016) p.3 (Table 4, Line 1). 98 See PROGRAM STATISTICS (May 24, 2016) pp.1-3 (comparing Table 2, Line 13 (Total Number of Claims) with Table 3, Line 13 (Notices Issued) and Table 4, Line 13 (for Total Paid and unpaid Eligibility Determinations)). 99 ALLOCATION AND REASONS [Rec. Doc ] (Dec. 11, 2015), pp BP FIRST QUARTER 2016 RESULTS (dated April 26, 2016) at p.18 (available at: content/dam/bp/pdf/investors/bp-first-quarter-2016-results.pdf (last visited: May 30, 2016) [This BP First Quarter 2016 Report is submitted with the Fee Petition as Exhibit 12]. Page 47

48 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 48 of 141 The Court, in 2012, was not called upon to expressly approve class counsel fees, but several objectors argued that the nature or structure of the Common Benefit Cost and Fee Agreement somehow affected the fairness, reasonableness, or adequacy of the relief to the class. These arguments were appropriately rejected: there was no discussion of attorneys fees until all other terms of the agreement were negotiated, agreed upon, reduced to writing, and submitted to the Court, so Class Counsel could not have engaged in trading off the interests of class representatives or absent class members so as to maximize their fee recovery. * * * In addition to this direct compensation to individual class members, the Settlement Agreement provides other significant benefits, including paying for a promotional fund, and paying for all costs of settlement administration. BP has also agreed not to oppose a significant award of common benefit attorneys fees and costs, effectively sparing the class from having to pay for common-benefit fees and expenses. Deepwater Horizon, 910 F.Supp.2d at 918 and , 101 aff d, 739 F.3d 790, reh g, en banc, denied, 756 F.3d 320, cert. denied, 135 S.Ct. 754 (2014). The Medical Benefits Settlement, and Approval The BP Medical Benefits Settlement provides four essential benefits to Class Members: (i) compensation for Specified Physical Conditions; (ii) the Periodic Medical Consultation Program; (iii) the Gulf Region Health Outreach Program; and (iv) a Back End Litigation Option, which preserves the classmembers ability to sue BP for compensatory damages for Later Manifested Physical Conditions. 102 Qualifying classmembers who demonstrate the manifestation of a Specified Physical Condition during the time-frames set forth in the agreement receive different levels of 101 Rec. Doc. 8138, at pp.33 and See generally BP MEDICAL SETTLEMENT AGREEMENT [Rec. Doc ]. Page 48

49 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 49 of 141 compensation depending on various factors, including whether he or she served as a Clean Up Worker or was simply a resident, whether the condition was acute or chronic, and the type of proof that he or she is able to present. The Settlement allows qualifying members to receive compensation for Specified Physical Conditions even without medical records; however, by providing medical records or showing corroboration in the appropriate database or other data source, he or she will qualify for a larger compensation payment. 103 The Periodic Medical Consultation Program (PMCP) was made available to all Clean Up Workers, as well as certain residents who lived right along the water and/or qualified for a Specified Physical Condition. Under the PMCP, classmembers are entitled to an initial medical consultation followed by additional visits every three years over the 21 year life of the program. To effectuate the benefits, the Medical Claims Administrator has established a network of medical services providers, selected in part based on geographic proximity to classmembers and their ability to provide the consultation services offered by the program. The Medical Claims Administrator communicates annually with participants, utilizing a call center and website to schedule appointments and encourage participation. Simply establishing a physician-patient relationship with a primary care physician provides a significant and tangible benefit for those who did not have a physician and/or could not afford primary medical services. The PMCP enables physicians performing the examinations to order certain blood, urine, cardiac, and respiratory tests that can help in the identification and diagnosis of certain conditions. 104 The Gulf Region Health Outreach Program (GRHOP) has expanded the capacity for and access to high quality, sustainable community-based healthcare services, including primary care, 103 See generally MEDICAL AGREEMENT, Exhibit 8 [ ]. 104 See generally MEDICAL AGREEMENT, Exhibit 12 [ ]. Page 49

50 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 50 of 141 behavioral and mental health care, and environmental medicine, in the Gulf Coast. 105 Under the settlement, BP has provided $105 million in grants to a set of integrated projects designed to improve healthcare capacity and health literacy for Class Members and others in Gulf Coast communities. In particular, GHROP includes four projects designed to address the fact that many Gulf Coast residents lack ready access to effective physical, mental, and behavioral health care: i) The Primary Care Capacity Project has and will continue to expand access to high quality, sustainable, community-based primary care by focusing on the development of Federally Qualified Health Centers (FQHCs) with links to specialty mental and behavioral health care, as well as environmental and occupational health services. ii) The Mental and Behavioral Health Capacity Project has and will continue to provide mental and behavioral health treatment in the short term. In the longer term, it will provide supportive services to improve the overall well-being of Class Members and other individuals affected by the Deepwater Horizon Incident. iii) The Environmental Health Capacity and Literacy Project has and will continue to build environmental health capacity to deliver coordinated specialty care; integrate community health workers with training in environmental health issues into primary care clinics; and create an environmental health science curriculum in public schools and universities across the region to promote environmental health literacy. iv) The Community Health Workers Training Program has and will continue to provide training for Community Health Workers on primary care capacity. It will also assist Class Members and others in obtaining mental and behavioral health services and environmental health care, and expand traditional health capacity by actively engaging community residents as participants to strengthen community resilience, build social capital, and improve overall health literacy MEDICAL AGREEMENT, IX.A. 106 MEDICAL AGREEMENT, IX.C. Page 50

51 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 51 of 141 In addition, the settlement calls for the creation of a comprehensive, publicly-accessible, text-searchable, indexed, online electronic resource and library, which has accumulated and will continue to assemble documents regarding: a) composition, quantity, fate, and transport (including the timing and quantity thereof) of oil and other substances released during the Deepwater Horizon Incident and dispersants and decontaminants used in Response Activities; b) nature, content, and scope of Response Activities; c) health risks or effects from exposure to substances released during the Deepwater Horizon Incident and any of the dispersants and decontaminants used in Response Activities; d) natural attenuation or decomposition of oil, dispersants, decontaminants, and other substances related to the Deepwater Horizon Incident and Response Activities; e) nature, content, and scope of in situ burning performed during the Response Activities, including any health risks and effects associated with such in situ burning; f) monitoring, sampling or testing for oil, dispersants, decontaminants, and other substances related to the Deepwater Horizon Incident and Response Activities; g) occupational safety, worker protection, and preventative measures for Clean Up Workers; and h) health studies of persons exposed to oil and other substances released during the Deepwater Horizon Incident and dispersants and decontaminants used in Response Activities. 107 The Medical Settlement also provides a mediation/litigation process for Class Members who may seek compensation from BP in the future for a physical condition that is claimed to have manifested after April 16, 2012 and resulted from exposure to oil and/or dispersants due to the Deepwater Horizon Incident during the time frames set forth in the Settlement Agreement. 107 MEDICAL AGREEMENT, IX.H. Page 51

52 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 52 of 141 Classmembers diagnosed with such Later Manifested Physical Conditions have the option to seek compensation for that condition through the Back End Litigation Option (BELO) or, as applicable, pursuant to workers' compensation law or the Longshore and Harbor Workers Compensation Act. Classmembers have four years from the latter of diagnosis or the Effective Date to notify BP of their intention to pursue a BELO claim. If mediation does not resolve the claim, then the BELO action can be filed in which the classmember need not prove: (a) the fact of exposure to oil and/or dispersants during the Deepwater Horizon Incident or Response Activities; or (b) the fault of BP for the Deepwater Horizon Incident. Nor can BP raise defenses based on prescription, statute of limitations or repose, laches, and certain other defenses. As a result, the only issues to be litigated are: (a) the fact of diagnosis; (b) the amount, location, and timing of oil and/or dispersants released and/or used during the Deepwater Horizon Incident or Response Activities; (c) the level and duration of the Class Member s exposure; (d) causation, including potential alternative causes; and (e) the amount of compensatory damages. 108 Like the BP Economic Class Settlement, the BP Medical Benefits Settlement was fully and finally approved as fair, reasonable, and adequate to the members of the class. In re Deepwater Horizon, 295 F.R.D. 112 (E.D.La. 2013). A group of professional objectors, nevertheless, appealed the settlement approval order, which Class Counsel successfully defended in the Fifth Circuit, 109 and upon remand, 110 after 108 See generally MEDICAL AGREEMENT, VIII. 109 See MOT. TO REQUIRE APPEAL BOND [Rec. Doc ]; MOT. TO DISMISS APPEAL, Fifth Cir. No (Aug. 7, 2013); APPELLEES BRIEF ON THE MERITS, Fifth Cir. No (Sept. 3, 2013); OPP. APPELLANTS MOTION TO RESPOND TO NEW ARGUMENTS, Fifth Cir. No (Sept. 17, 2013). 110 See ORDER, Fifth Cir. No (Sept. 30, 2013). Page 52

53 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 53 of 141 deposing the four objectors and providing the Court with a comprehensive submission 111 at which point the appeal was voluntarily dismissed. 112 At this point, almost $94 million of the $105 million associated with the GHROP has been paid out in grants, approximately $350,000 has been expended to provide periodic medical treatment, and over $12.7 million has been paid to classmembers with Specified Physical Conditions. 113 Post-Settlement Implementation, Assistance to Classmembers, and Dispute In connection with the implementation of the BP Settlements, a number of Transition Orders were submitted and entered, 114 Class Complaints were perfected, 115 and approval papers were prepared and filed. 116 Class Counsel selected, educated, and otherwise worked with the Class Representatives, while also working with BrownGreer, Garden City, Kinsella, and a team from BP to revise and complete the Class Notice and FAQs, Claim Forms, and Instruction Booklets. Class Counsel conducted a series of free seminars around the Gulf Coast, from Houston to Miami, in order to educate attorneys and CPAs on the specific terms and provisions of the settlement. A Class Counsel Office (CCO) was opened in the same building where the Claims Administrator s Office had been selected, and Common Benefit Attorneys were available to answer questions about the Settlements, in person and by phone. A Settlement Questions / Class 111 SUBMISSION BY CLASS COUNSEL ON REMAND OF MEDICAL SETTLEMENT (with Incorporated Motion to Strike, Motion to Dismiss, and Motion for Sanctions) [Rec. Doc ] (Nov. 19, 2013). 112 See MOT. TO DISMISS APPEAL, Fifth Cir. No (Nov. 26, 2013). 113 HERMAN-ROY DECLARATION Rec. Docs. 5987, 5988, 5995, 6049, 6085, 6266, 6415, 6567, 6573, 6796, 6822, See No , Rec. Doc. 1 (Economic Class Complaint); No , Rec. Doc. 1 (Medical Class Complaint). 116 See, e.g., Rec. Docs. 6269, 6272, 6414, 7104, 7116, 7727, 7728, Page 53

54 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 54 of 141 Counsel address was also established, so that a team most familiar with the terms and provisions of the Economic and Medical Settlement Agreements and Policies could respond to questions from potential classmembers, plaintiffs counsel, claims preparers, and pro ses. 117 At the same time, Class Counsel worked with Dean Klonoff, Professor Issacharoff, Mr. Uddo, Lynn Baker, Dr. Harbut, and others, to ensure that all legal, procedural, ethical, and professional issues were being attended to, and to ensure, along with BP Counsel, the Seafood Neutrals, the Claims Administrator, Brown Greer, Garden City, and the Joint Experts, (Professor John C. Coffee, Jr., Meade Monger, Dr. Goldstein, and Mr. Azari), that the Class Notice was effectuated, that Opt Outs were being collated, and that all appropriate evidence in support of the settlements was prepared and submitted. Class Counsel also had to address requests by objectors and others for class and settlement-related discovery 118 Class Counsel reviewed and summarized all of the Objections to both settlements, 119 and coordinated with Dean Klonoff, BP Counsel, the Economic and Medical Claims Administrators, the Seafood Neutrals, the joint experts, and others, with respect to the supplemental evidentiary submissions and Replies. 120 Class Counsel coordinated with BP to prepare for the Fairness Hearing, 121 as well as the Joint Proposed Findings. 122 At the same time, Class Counsel were called upon to address numerous interpretive, administrative, and logistical issues with the Claims Administrator, Program Vendors, and 117 Class Counsel later added an additional ccappeals@mdl2179psc.com team of attorneys specifically tasked to provide Economic Classmembers with advice and assistance in the submission of Settlement Program Appeals, (as well as Requests for Discretionary Review, and, ultimately, appeals to the U.S. Fifth Circuit). 118 See, e.g., Rec. Doc Rec. Docs , See Rec. Docs and 7728 (Reply Briefs), and Rec. Docs. 7726, 7730 (Joint Submissions). 121 See Transcript (Nov. 8, 2012). 122 Rec. Docs. 7945, Page 54

55 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 55 of 141 representatives from BP. Common Benefit Attorneys have made formal and informal written submissions, attended both informal meetings and formal Administrative Panel Meetings, and participated with BrownGreer and BP in an orientation session with the independent Appeal Panelists. Class Counsel also reviewed the Seafood and Tourism Promotional Grant Applications and selected appropriate recipients with the Claims Administrator and representatives of BP. As we began to experience more intensive discussions, issues, and disputes, between and among the Parties and the Settlement Program, Class Counsel developed a team of attorneys to attend monthly workstream, budget, and/or other meetings, and to address issues raised by BP (and/or the Settlement Program), with respect to not only interpretive Policy issues, but also budgetary issues, audit issues, IT issues, potential fraud investigation issues, and other disputes. On the Medical Settlement side, Class Counsel have attended numerous GHROP Meetings, and participated in routinely scheduled calls and meetings with the Claims Administrator s staff, as well as groups of attorneys who were raising various issues and concerns. Medical Provider Agreements were developed in coordination with the Claims Administrator and BP representatives, and are continuously reviewed and executed, as additional classmembers from around the Gulf seek Periodic Medical Consultation. Class Counsel have traveled to the BrownGreer facility in North Carolina, to observe, first hand, how the Claims were being processed. And Class Counsel also worked with Magistrate Wilkinson and BP to establish the BELO case management protocol. 123 Class Counsel continue to monitor the individual Settlement Program Appeals, Requests for Discretionary Review, and Appeals to the U.S. Fifth Circuit, of individual Claims, providing insight and materials to Claimants, and in many cases preparing and submitting amicus memos 123 See, e.g., Rec. Docs , 13787, 13880, 13891, 13991, and See also Rec. Doc (Brief re BELO Plaintiffs Right to Jury Trial). Page 55

56 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 56 of 141 or briefs. 124 Panelists, 125 In July of 2014, we prepared and submitted a Master Amicus to the Program Appeal and we continue to review and routinely circulate redacted Program Appeal Decisions, and maintain a searchable Compendium of Program Appeal Decisions. 126 We have prepared and updated a Master Index of relevant filings, submissions, briefs, and other materials, which have been, not only circulated, to the extent practical, but filed into PACER, 127 so that everyone could access them, and worked with the District Court and the Fifth Circuit s Clerk s Office to create a Master Appeal Record. 128 Class Counsel continue to respond daily to numerous questions, seek clarification and/or assistance on Claimants behalf from the Claims Administrators and their staffs, raise Programwide policy or administrative issues, and generally attempt to provide Claimants and their attorneys with information, suggestions, references and/or materials that may assist them in the prosecution of their Settlement Program Claims. The Matching / BEL Dispute Around the time of the final district court approval of the Economic Class Settlement, BP started to complain about the way that Business Economic Loss (BEL) Claims were being processed by the Claims Administrator and Program Vendors. Comprehensive in camera submissions were prepared by Class Counsel, including expert declarations from noted accountants and economists, (including the co-author of an outdated textbook relied upon by 124 See, e.g., Fifth Cir. Nos , and (Non-Profits): Mot. to Dismiss Appeals (Jan. 27, 2014); Reply in Support of Mot. to Dismiss (Feb. 13, 2014); Appellees Brief on the Merits (June 9, 2014). Fifth Cir. No (Amicus Brief filed Nov. 20, 2015). Fifth Cir. No (Amicus Brief filed Dec. 29, 2015). Fifth Cir. No (Amicus Brief filed Jan. 19, 2016). Fifth Cir. No (Amicus Brief filed Feb. 5, 2016). Fifth Cir. No (Amicus Brief filed March 28, 2016). 125 Rec. Doc ] 127 Rec. Doc [An updated Master Index dated December 22, 2015 is submitted herewith as Exhibit 128 Fifth Cir. No See, e.g., Rec. Doc (Joint Record Designation). Page 56

57 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 57 of 141 BP), and provided to the Court along with other relevant materials from negotiations, approval, and implementation. 129 After the Court ruled, BP filed a lawsuit for breach of contract against the Claims Administrator, and a Motion to Enjoin the Settlement Program, which were successfully opposed by Common Benefit Attorneys. 130 Once the U.S. Fifth Circuit Court of Appeals vacated and remanded the matter in October of 2013, 131 a number of submissions were prepared and filed by Class Counsel both in the District Court and the Court of Appeals. 132 A BEL Group was organized by Common Benefit Attorneys to develop further factual and expert economic and accounting evidence, (a) on the threshold contractual interpretation issue, (b) on the newly-raised causation issue, and (c) regarding the matching policy, (Policy No. 495), that was ultimately developed by the Program Accountants and approved by the Court. 133 This BEL Group addressed not only the expert accounting issues, and the legal briefing, but also potential ethical issues, class issues, and the public relations issues and concerns. 129 See Rec. Docs and thru See generally MOTION TO INTERVENE [Rec. Doc. 8975] and ANSWER [Rec. Doc. 9013] in Civil Action No ; OPPOSITION TO BP MOT. TO STRIKE [Rec. Doc. 9118]; OPPOSITION TO BP MOTION FOR INJUNCTION [Rec. Doc. 9087]; TRANSCRIPT (April 5, 2013). See also OPP. BP MOT. FOR INJUNCTION, Fifth Cir. No (April 17, 2013); OPP. BP MOT. FOR INJUNCTION, Fifth Cir. No (April 18, 2013); APPELLEES BRIEF ON THE MERITS, Fifth Cir. No (May 24, 2013). 131 In re Deepwater Horizon, 732 F.3d 326 (5 th Cir. 2013) ( Deepwater Horizon I ) ( BEL Opinion ). 132 See generally Rec. Doc (Index). In particular, see, e.g., Rec. Docs , 11804, 11833, 11885, 12017, and thru ; and, e.g., OPP. EMERGENCY MOT. FOR INJUNCTION, Fifth Cir. No (Nov. 22, 2013); LETTER BRIEF, Fifth Cir. No (Jan. 8, 2014); OPP. RENEWED MOT. FOR INJUNCTION, Fifth Cir. No (Jan. 8, 2014); LETTER BRIEF, Fifth Cir. No (Jan. 20, 2014); OPP. U.S. CHAMBER MOT. FOR LEAVE TO FILE FOR REHEARING EN BANC, Fifth Cir. No (March 25, 2014); OPP. MOT. TO STAY MANDATE, Fifth Cir. No (May 27, 2014). 133 Experts included noted former UNO economics professor, Dr. Tim Ryan; the co-author of the outdated textbook relied upon by BP, Dr. Mark Kohlbeck; Professor Sean Michael Snaith; and several Certified Public Accountants, including George Panzeca, Allen Carroll, Robert Wallace, Harold Asher, and Rick Stutes. Page 57

58 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 58 of 141 Once the final matching policy was formally promulgated and approved, Class Counsel sought clarification, 134 reconsideration, 135 and ultimately appeal of Policy No. 495, 136 while also opposing BP s Motion for Restitution, 137 and appeal of that issue to the U.S. Fifth Circuit. 138 BP s Attacks on the Economic Settlement In conjunction with BP s appeal on the BEL matching issues, the BP Defendants increased their other efforts to back out of the Economic Settlement Agreement, including a change in course on the approval of the settlement, repeated motions to enjoin the Program, objections to the budget, attacks on the Claims Administrator, and other efforts, within the Settlement Program, at the District Court, at the U.S. Court of Appeals and Supreme Court, in paid advertisements, and in the press, requiring a significant effort by Common Benefit Attorneys to defend the Settlement Program, oppose motions and appeals, meet with the Claims Administrator and the Special Master, and attempt to manage the statements, concerns, assistance, and/or attacks in the media and by business groups and professional associations. Among other things, Common Benefit Attorneys were called upon to defend the Class and the Settlement with respect to the following: Opp. BP Mot. to Suspend Payments (July 18, 2013) 139 Opp. Second Motion to Enjoin Program (Aug. 25, 2013) Rec. Doc Rec. Doc Fifth Cir. No : Appellants Brief on the Merits (July 20, 2015); Reply Brief (Oct. 13, 2015). 137 Rec. Doc Fifth Cir. No : Appellees Brief (Feb. 9, 2015). 139 Rec. Doc Rec. Doc Page 58

59 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 59 of 141 Motion, Memo and Reply Brief to Authorize Claims Administrator to Implement Settlement re Oil & Gas Support Industry Claims (Aug. 27, 2013) 141 Appellees Brief on the Merits, Fifth Cir. No (Sept. 3, 2013) Response to BP Objections to 4Q Budget (Sept. 17, 2013) 142 Class Counsel s Comments re Freeh Report (Sept. 20, 2013) 143 Mot. to Realign, Fifth Cir. No (Sept. 27, 2013) Opp. Emergency Mot. for Injunction, Fifth Cir. No (Nov. 22, 2013) Class Objection to New Evidence from BP in Settlement Program Appeals (Dec. 13, 2013) 144 Opp. Renewed Mot. for Injunction, Fifth Cir. No (Jan. 8, 2014) Opp. Motion to Enjoin Seafood Program (Jan. 17, 2014) 145 Letter Brief, Fifth Cir. No (Jan. 18, 2014) Letter Brief, Fifth Cir. No (Jan. 20, 2014) Motion to Dismiss Appeal, Fifth Cir. No (Jan. 29, 2014) Motion, Briefs, Stipulation, Opposition to Mot. for Reconsideration, and Certification on Class Counsel s Motion to Protect and Preserve Claimant Confidentiality and to Enforce Orders of the Court 146 Opp. Cobb & Allpar Pet. For Rehearing, Fifth Cir. No (Feb. 6, 2014) Opp. BP Mot. for Pet. Rehearing En Banc, Fifth Cir. No (Feb. 6, 2014) 141 Rec. Docs and (filed Sept. 20, 2013). 142 Rec. Doc Rec. Doc Rec. Doc Rec. Doc Rec. Docs , 12539, 12548, 12987, Page 59

60 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 60 of 141 Opp. Coon Pet. For Rehearing, Fifth Cir. No (Feb. 6, 2014) Opp. BP Mot. for Production of Freeh Investigation Docs (Feb. 10, 2014) 147 Reply Brief to Dismiss Appeal, Fifth Cir. No (Feb. 19, 2014) Opp. U.S. Chamber Mot. for Leave to File for Rehearing En Banc, Fifth Cir. No (March 25, 2014) Letter Submission to Judge Shushan re Transition Claims Dispute (May 14, 2014) 148 Opp. Mot. to Stay Mandate, Fifth Cir. No (May 27, 2014) Appellee s Original Brief on the Merits, Fifth Cir. No (June 9, 2014) Opposition to BP s Motion for Restitution (Aug. 15, 2014) 149 Opposition to BP Motion to Stay filed in U.S. Supreme Court, No.13A1177 (June 2, 2014) [No ] Opposition to BP Petition for Certiorari, No (Oct. 8, 2014) Appellees Brief on the Merits, Fifth Cir. No (Dec. 8, 2014) Opp. Mot. to Remove the Claims Administrator (Oct. 15, 2014) 150 Opp. Mot. Expedite Appeal, Fifth Cir. No (Nov. 26, 2014) Response to Mot. to Add Claims Administrator as Party in Interest, Fifth Cir. No (Dec. 12, 2014) Opp. WLF Amicus, Fifth Cir. No (Dec. 29, 2014) Opp. U.S. Chamber Amicus, Fifth Cir. No (Dec. 29, 2014) Appellees Brief on the Merits, Fifth Cir. No (Jan. 6, 2015) 147 Rec. Doc Rec. Doc Rec. Doc Rec. Doc Page 60

61 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 61 of 141 Appellees Brief on the Merits, Fifth Cir. No (Feb. 2, 2015) Class Comments re Claims Administrator Update (May 4, 2015) 151 Class Comments re Claw-Back Motions (June 8, 2015) 152 Following a re-set between the Claims Administrator and BP in 2015, Class Counsel continue to monitor the administration of the Program, attending periodic business process, IT, FWA, and budget workstream meetings, and to otherwise work with BP Counsel, the Claims Administrator, and the Program Vendors to address issues as they arise. BP s Dispute over the Medical Indemnity Agreement After months of work to force the professional objectors to dismiss their frivolous appeal, Counsel for BP informed Class Counsel that they were terminating the Medical Benefits Settlement, based on the alleged inability of the Medical Claims Administrator to obtain a sufficient agreement with CMS. 153 Class Counsel spent months working with the Claims Administrator, Judge Shushan, and BP representatives to secure a final agreement with CMS, and the Effective Date of the settlement. The Chronic SPC Dispute As the Medical Benefits Settlement started to process claims, a question arose over whether classmembers with conditions specified under the Settlement Agreement that first manifested shortly after the Spill but were not formerly diagnosed until after the date of the Settlement should be treated as Later Manifested Physical Conditions under the terms of the Settlement Agreement. Although the Medical Claims Administrator initially confirmed that such 151 Rec. Doc Rec. Doc HERMAN-ROY DECLARATION 65. Page 61

62 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 62 of 141 claims were clearly intended to be treated as Chronic Specified Physical Conditions (Chronic SPCs), he, after conferring with BP, curiously changed positions, and started requiring such classmembers to pursue Back-End Litigation Option (BELO) claims. Class Counsel submitted a Memo to Judge Shushan, 154 a Letter formally objecting to the Medical Claims Administrator s Policy Statement with a Request for Oral Argument and Motion to Strike Herzstein s Declaration, 155 a further Submission in Response to the Court s Order, 156 a Motion for Reconsideration and Reply Brief, 157 which was argued on September 24, Unable to secure SPC compensation, Class Counsel then worked with the Court and BP Counsel to assist such classmembers in the pursuit of BELO claims. Development of the BELO Case-Management Order Particularly with the Medical Claims Administrator s classification of many chronic conditions as Later Manifested Physical Conditions, the Court and the Parties recognized the need for a process to deal with BELO actions. Class Counsel worked with other plaintiffs attorneys, Judge Shushan, Judge Wilkinson, and representatives of BP, to establish a BELO case-management order. 159 In response to a BP Motion to Strike asserted in one of the earlier filed BELO actions, Class Counsel successfully advocated for the classmembers option to request a jury trial Rec. Doc (March 28, 2014). 155 Rec. Doc (May 21, 2014). 156 Rec. Doc (July 4, 2014). 157 Rec. Doc (Aug. 20, 2014) and Rec. Doc (Sept. 19, 2014). 158 See Transcript (Sept. 24, 2014). 159 BELO INITIAL PROCEEDINGS CASE MANAGEMENT ORDER [Rec. Doc ] (Jan. 30, 2015). See also generally, e.g., Rec. Docs , 13787, 13880, 13891, 13991, and Rec. Doc See also, Rec. Doc (Response to BP Mot. to Amend BELO CMO). Page 62

63 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 63 of 141 Individual U.S. Fifth Circuit Claims Appeals As noted, Class Counsel continue to monitor Program Appeal filings and decisions, Requests for Discretionary Review and decisions thereon, and individual claims appeals to the U.S. Fifth Circuit. In most cases, at the Program Appeal and Discretionary Review level, Class Counsel simply offer assistance and guidance to the individual claimant and/or his or her counsel. However, in some cases, Class Counsel will submit an amicus brief. 161 In addition, and more proactively, since the Fifth Circuit s Rule 79 Decision, 162 Class Counsel have created a Master Index, 163 and a Master Record; 164 routinely monitor the Fifth Circuit notices and filings; and submit Class Counsel Amicus Briefs, in order to provide the Court with additional background and context, which we hope will assist the Court in not only deciding the merits of this particular appeal, but in helping to provide for the appropriate interpretation and application of the Settlement Agreement as to class-wide issues for the benefit of the Class as a whole. 165 The Phase One and Phase Two Liability Trials and Appeals One of the significant early contributions that Common Benefit Attorneys made to the overall litigation strategy was to develop the notion of a two-fault allocation, whereby BP s liability for the predominant economic and environmental damages caused by the Spill would be 161 See, e.g., Class Counsel s Amicus Submission in Opposition to BP s Request for Discretionary Review of Claim No (Feb. 6, 2016). 162 In re Deepwater Horizon, 785 F.3d 986 (5th Cir. 2015) ( Rule 79 Decision ). 163 The original version was submitted as Rec. Doc It has since been updated, circulated, and posted. See, e.g., Exhibit Fifth Cir. No See, e.g., Rec. Doc (Joint Record Designation). 165 See, e.g., Fifth Cir. Nos , and (Non-Profits): Mot. to Dismiss Appeals (Jan. 27, 2014); Reply in Support of Mot. to Dismiss (Feb. 13, 2014); Appellees Brief on the Merits (June 9, 2014). Fifth Cir. No (Amicus Brief filed Nov. 20, 2015). Fifth Cir. No (Amicus Brief filed Dec. 29, 2015). Fifth Cir. No (Amicus Brief filed Jan. 19, 2016). Fifth Cir. No (Amicus Brief filed Feb. 5, 2016). Fifth Cir. No (Amicus Brief filed March 28, 2016). Page 63

64 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 64 of 141 maximized, separate and apart from, and in addition to, the defendants joint liability for the personal injuries and wrongful deaths that occurred in the explosions and fire on April 20, This concept was incorporated into the Trial Plan, and was illustrated by the following: Because BP would likely bear the entire responsibility for the Failure to Prepare for a Spill and the Failure to Timely Cap the Well, this strategy was intended to maximize the relative fault of BP, 166 and allowed the plaintiffs to align themselves with Transocean and Halliburton against BP with respect to the Phase Two Trial. After the Class Settlements were announced, the Court solicited, and the PSC (among others) provided, in camera submissions regarding the effects of the Settlements on the remaining claims, and a suggested plan forward. Several motions on discreet legal issues were 166 In addition to the fault allocation itself, the PSC realized that all of the Phase Two conduct was, by definition, corporate conduct under the P&L Boat Rentals test, thereby giving the plaintiffs a second bite at the apple with respect to punitive damages liability. Page 64

65 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 65 of 141 scheduled, and briefed, and the Court issued an amended Trial Plan, which continued to embrace the same two-phase structure. 167 The Phase One Trial commenced on February 25, 2013, and concluded on April 17, Known as the Incident Phase, it addressed fault determinations relating to the loss of well control, the ensuing explosion and fire, the sinking of the Deepwater Horizon, and the initiation of the release of oil from the well. Phase One also considered issues related to Transocean s limitation defense, as well as the various cross-claims, counter-claims, and third-party demands between and among the defendants. 168 The Phase Two Trial commenced on September 30, 2013, and concluded on October 18, This phase was divided into two segments: Source Control and Quantification. While the United States was responsible for the Quantification segment, the Source Control segment was prosecuted by Common Benefit Attorneys, together with the States, and Defendants Transocean and Halliburton, ( the Aligned Parties ). This segment focused on the conduct or omissions of BP relative to stopping the release of hydrocarbons. The Quantification segment, on the other hand, pertained to the amount of oil actually released into the Gulf of Mexico, an important factor for determining the amount of civil penalties under the CWA. 169 In light of the BP Class Settlements, (which included the assignments to the Class of BP s Claims for BP s compensatory and punitive damages against Halliburton and Transocean, and the classmembers own individual Expressly Reserved punitive damages claims against Halliburton and Transocean, as well as some Expressly Reserved claims by classmembers against BP), Common Benefit Attorneys, in conjunction and coordination with the States and the 167 See Second Amended Pre-Trial Order No. 41 [Rec. Doc. 6592] (May 30, 2012). 168 See PHASE ONE FINDINGS [Rec. Doc ] p See PHASE ONE FINDINGS, p Page 65

66 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 66 of 141 United States, continued to pursue liability findings against BP, Transocean, and Halliburton, representing the interests of the following: I. Economic & Property Damage Settlement Class Claims against Halliburton and Transocean a. BP s Claim for Its Own Compensatory Damages suffered by BP Including claims for BP s own direct first-party damages, such as loss of the well, loss of production, the costs of drilling the relief wells, clean-up and response costs incurred; Assigned to and Asserted by the Class (Trust) as a whole; and, Available if Class (Trust) Establishes Gross Negligence or Fraud and/or core Contractual Breach b. BP s Claim for Punitive Damages Assigned to and Asserted by the Class (Trust) as a whole; and, Available upon Showing of Gross Negligence c. Classmembers Expressly Reserved Punitive Damage Claims Asserted by Classmembers with Robins Dry Dock Standing Individually; and, Available upon Showing of Gross Negligence II. Private Economic Opt Out, Excluded, and Expressly Reserved Claims against BP, Halliburton and Transocean For Compensatory Damages by All Plaintiffs against BP; For Compensatory Damages against Halliburton and Transocean by Plaintiffs with Robins Dry Dock Standing, but Indemnified by BP; Page 66

67 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 67 of 141 Punitive Damages against BP / Halliburton / Transocean Available to Plaintiffs with Robins Dry Dock Standing upon Showing of Gross Negligence III. Personal Injury Claims against BP, Halliburton and Transocean Medical Benefits Classmembers Expressly Reserved Claims for Punitives against Halliburton and Transocean Personal Injury Claims of Opt Outs and/or People Not Covered by Class IV. Local Government Claims For Compensatory and Punitive Damages; Compensatory Damages against Halliburton and Transocean Indemnified by BP; and, Punitive Damages Available upon Proof of Gross Negligence For Compensatory Damages by All Local Governments against BP; For Compensatory Damages against Halliburton and Transocean by Local Government Entities with Robins Dry Dock Standing, but Indemnified by BP; Punitive Damages against BP / Halliburton / Transocean Available to Local Government Entities with Robins Dry Dock Standing upon Showing of Gross Negligence 170 The liability trial that commenced on February 25, 2013 was no ordinary trial. As members of the press reported at the time: A TITANIC COURTROOM SHOWDOWN WITH BILLIONS OF DOLLARS IN THE BALANCE See generally Plaintiffs Opposition to Transocean s Motions for Partial Judgment on the Pleadings (May 20, 2013) [Rec. Doc ] at pp.5-6, and Plaintiffs Opposition to Halliburton s Motions for Partial Judgment on the Pleadings (May 20, 2013) [Rec. Doc ] at pp BP s Billions at Stake as Courtroom Showdown Starts CNN.com (Feb. 25, 2013). Page 67

68 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 68 of 141 TRIAL OF THE CENTURY THIS WILL BE THE MOST SIGNIFICANT TRIAL EVER BROUGHT UNDER ENVIRONMENTAL LAWS THE MAMMOTH TRIAL OVER THE GULF OF MEXICO OIL SPILL ENVIRONMENTAL TRIAL OF THE CENTURY TO START TODAY... BILLIONS OF DOLLARS AND THE HEALTH OF THE GULF COAST ARE ON THE LINE THE WORST ENVIRONMENTAL DISASTER IN AMERICAN HISTORY With respect to the overall trial effort, the numbers largely speak for themselves: Phase One Depos Taken 168 Phase One Depo Bundles Prepared 200 Phase One Depo Bundles Submitted 6,671 Phase One Exhibits Listed by Plaintiffs 3,382 Phase One Exhibits Admitted (by all parties) 29 Days of Phase One Trial 68 Experts Originally Designated 34 Additional May-Call Live Witnesses Listed and Prepared For by PSC 39 Live Witnesses Called (by all parties) 172 Trial of the Century: Can BP Deflect Blame for Gulf Oil Spill? CSMonitor.com (Feb. 23, 2013). 173 BP Trial s First Week Offers Glimpse of Long Fight USAToday.com (March 2, 2013). 2012). 174 BP Oil Spill Trial Is Good Business for Hotels, Restaurants, Office Rentals NOLA.com (Feb. 26, 175 Environmental Trial of the Century to Start Today PublicNewsService.org (Feb. 24, 2013). 176 Trial Against BP to Begin Over 2010 Rig Explosion NRP.org (Feb. 25, 2013). 177 See generally PHASE ONE (a snapshot) [Exhibit 17]. Page 68

69 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 69 of 141 And, for Phase Two: 79 Phase Two Depos Taken 108 Phase Two Plaintiff and/or Aligned Party Source Control related Depo Bundles Prepared 34 Phase Two Source Control related Depo Bundles Submitted 1,804 Phase Two Exhibits Listed by Plaintiffs / Aligned Parties 1,777 Phase Two Exhibits Admitted (by all parties) 4 Days of Phase Two Source Control Segment Trial 12 Total Days of Phase Two Trial 12 Source Control related Experts Originally Designated 12 Additional Source Control related May-Call Live Witnesses Listed and Prepared For 10 Source Control related Live Witnesses Called 29 Total Phase Two Witnesses Called In addition to the rigorous in-court and out-of-court trial demands, such as witness, exhibit, demonstrative and cross-examination preparation and presentation, the PSC Trial Teams and their staffs provided logistical and administrative assistance for the collective Plaintiff effort, for the Court itself, and for the Parties as a whole. In addition to staffing and supplying, daily, a PSC inside-the-courthouse War Room, Common Benefit Attorneys tracked the admission status of all exhibits, demonstratives and deposition bundles for both plaintiff and defense, and coordinated with all counsel, indata, and the Court regarding same. They participated in nightly calls with defense counsel, counsel for the U.S., Coordinating Counsel, and indata, to review admitted evidence for each day, and took lead responsibility for weekly and final marshalling conferences with the Court. Common Benefit Attorneys organized and directed the production Page 69

70 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 70 of 141 and providing of Phase One and Phase Two Trial Access Badges for all participants and attendees. And established the website, providing public access to daily trial transcripts and exhibits, while continuing to assist with the uploading of materials and other maintenance of the site. Finally, Common Benefit Attorneys monitored the Quantification segment, for potential relevance and/or use in OPA Test Case and/or individual damages trials. Following each phase, Common Benefit Attorneys spent months preparing proposed findings of fact, conclusions of law, and associated post-trial briefs. 178 Ultimately appeals were filed and briefed on the issue of BP s punitive damages liability. 179 PSC firms also spent time revising, updating, assimilating, and indexing the significant evidence for potential use as a Trial Package or other resource for test cases in the MDL or any unresolved transferred or remanded cases. The Phase Three Trial While neither private plaintiffs nor local government entities were parties to the Phase Three Trial, Common Benefit Attorneys were asked by the Court to assist with evidentiary and other logistics associated with the trial. In addition, Common Benefit Attorneys attended the Phase Three Trial and reviewed the documentary evidence for potential relevance to any future individual trials by plaintiffs on environmental and/or economic issues generally, and, in particular, for use in the upcoming OPA Test Cases. 178 See Rec. Docs , and (Phase One Post Trial Brief, Proposed Findings and Conclusions, and Reply Brief); Rec. Docs , 12039, (Phase Two Post Trial Brief, Proposed Findings and Conclusions, and Reply Brief); Rec. Doc (Aligned Parties Phase Two Proposed Findings); Rec. Docs and (Oppositions to Halliburton and Transocean Motions for Summary Judgement on Assigned Claims); Rec. Doc (Opp. PLC Mot. for Entry of Judgment). 179 See APPELLANTS BRIEF ON THE MERITS, No (June 1, 2015); see also, e.g., MOTION TO CONSOLIDATE PHASE ONE TRIAL APPEAL [NO ] WITH PHASE TWO TRIAL APPEAL [NO ] (Feb. 19, 2015); MOTION TO RECONSIDER DENIAL OF MOTION TO CONSOLIDATE (March 5, 2015); OPPOSITION TO MOTION TO STRIKE SUPPLEMENTAL RECORD DESIGNATIONS, No (March 5, 2015). Page 70

71 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 71 of 141 The Halliburton and Transocean Settlements In addition to the BP Class Settlements, the PSC reached proposed class settlements with Halliburton and Transocean, for a total of approximately $1.24 Billion, including an Aggregate Payment of $1,028,000,000 to be paid by Halliburton 180 and an Aggregate Payment of $211,750, to be paid by Transocean. Magistrate Judge Wilkinson was appointed to serve as the Allocation Neutral by the Court, per the terms of the Agreements, to allocate these Aggregate Payments between (a) the existing BP Economic & Property Damages Settlement on the Assigned Claims from BP, and (b) the Expressly Reserved and/or other claims for punitive damages against Transocean and/or Halliburton. In addition to submissions to Judge Wilkinson regarding the allocation process, 182 Common Benefit Attorneys have prepared and filed Class Complaints, 183 an Assignment Complaint, 184 and Amended Agreements, 185 arranged for the Escrow Agreements and Accounts, 186 responded to the Claims Administrator regarding the Distribution Model, 187 and moved for Preliminary Approval, 188 including the submission of a Notice Plan. 189 In the meantime, Judge Wilkinson has allocated $337.6 Million to the BP Economic & Property Damages Settlement Class on the Assigned Claims, and $902,083,250 to a New Punitive Damages Settlement Class See Second Amended Halliburton (HESI) Settlement Agreement (Sept. 4, 2015) [Rec. Doc ] Section 6(a) (p.18). 181 See Transocean Settlement Agreement (May 29, 2015) [Rec. Doc ] Section 6(a) (p.17). 182 See, e.g., Rec. Docs , See No , Rec. Doc. 1 (Halliburton New Class Complaint); No , Rec. Doc. 1 (Transocean New Class Complaint). 184 See No (Halliburton Assigned Claims Complaint). 185 See, e.g., Rec. Docs , See, e.g., Rec. Docs , 14906, See, e.g., Rec. Doc Rec. Doc Rec. Doc ALLOCATION AND REASONS [Rec. Doc ] (Dec. 11, 2015). Page 71

72 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 72 of 141 The Government Settlements 191 During the Summer of 2015, BP announced a Global Settlement with the United States, the States, and Local Governments, to resolve Clean Water Act, Natural Resource Damage, and Economic Loss claims, damages, assessments, and penalties. In particular, the settlement included: $5.5 Billion Clean Water Act Penalties $8.7 Billion Natural Resource Damages $4.9 Billion State Economic Loss Damages 192 $687.4 Million Local Government Claims 193 In order to help facilitate the settlement, the existing hold-back on all State and Local Government recoveries was lifted, and a payment by BP of $40 Million to Common Benefit 194, 195 Attorneys collectively was approved. 191 Of course, Class Counsel do not make any claim for common benefit fees with respect to the Clean Water Act penalties, the NRD assessment, the Local Government Settlements, or the Economic Loss Settlements with the States of Florida, Mississippi, or Texas. Because, however, the PSC and other Common Benefit Attorneys are receiving fees based on their joint-prosecution agreements with the States of Alabama and Louisiana; because they acted for the benefit of the Local Governments; and because they worked cooperatively with the United States in establishing gross negligence and willful misconduct under the Clean Water Act; petitioners believe that such recoveries are relevant to the overall analysis; as well as relating the historical background and context. 192 Including $1 billion to the State of Alabama, $2 billion to the State of Florida, $1 billion to the State of Louisiana, $750 million to the State of Mississippi, and $150 million to the State of Texas. 193 See generally U.S. Dept. of Justice, U.S. and Five Gulf States Reach Historic Settlement with BP to Resolve Civil Lawsuit Over Deepwater Horizon Oil Spill (Oct. 5, 2015) (available at: pr/us-and-five-gulf-states-reach-historic-settlement-bp-resolve-civil-lawsuit-over-deepwater), and BP to settle federal, state and local Deepwater Horizon claims for up to $18.7 billion with payments to be spread over 18 years (July 2, 2015) (available at: BP settlement money flows to cities hundreds of miles from Gulf Coast shoreline Fuel Fix (from the Houston Chronicle) (Aug. 20, 2015) (available at: blog/2015/08/20/bp-settlement-money-flows-to-cities-hundreds-of-miles-from-gulf-coast-shoreline/# =0). The formal CONSENT DECREE between and among the BP Defendants, the United States, and the States of Alabama, Florida, Louisiana, Mississippi and Texas was approved on April 4, 2016 [Rec. Docs and 16095]. 194 See ORDER (July 10, 2015) [Rec. Doc ] (lifting hold-back on State and Local Government Claims), and CERTIFICATES OF NON-OBJECTION [Rec. Doc ], ORDER [Rec. Doc ], and Ex. A to Order [Rec. Doc ] No. 1, (approving payment of $40 Million to Common Benefit Attorneys). 195 As noted supra, the other hold-backs on previous GCCF, local government, personal injury, and wrongful death settlements were lifted, the funds were returned, and no person, business, local government, or other plaintiff or claimant (nor their own individually retained attorneys) would be required to make any common benefit cost contribution or pay any common benefit fee. See Rec. Docs. 6428, 14825, and Page 72

73 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 73 of 141 The OPA Test Cases Following the BP Class Settlements and the Limitation and Liability Trial, the Plaintiffs Steering Committee turned attention to the remaining un-tried and unsettled cases of plaintiffs who might have pure OPA claims against BP as the Responsible Party. Working with Judge Shushan and the BP Defendants, a group of OPA Test Cases was selected to provide an illustrative set of fact situations that would provide guidance on two primary issues: (a) how to interpret and apply OPA causation, in the first instance, for loss of profits and/or earning capacity, under 33 U.S.C. 2704(b)(2)(E); and (b) the extent, if any, to which BP was responsible for losses resulting, at least in part, from the Deepwater Moratoria and other permitting changes caused by the Spill. After a lengthy review and selection process, the Test Cases were initially selected in August of 2013, 196 and a Scheduling Order was ultimately entered in June of By this time, Common Benefit Attorneys had already spent a considerable amount of time and resources researching the OPA legislative history; factual and legal issues regarding previous oil spills or other casualties, including statutory and/or regulatory suspensions and/or changes, the closure of fisheries, the closure of waterways, the closure of ports, pipelines, roads and/or bridges, etc.; and other statutory, regulatory, legislative, academic materials and caselaw regarding government action and foreseeability; and identifying and working with potential and retained experts, consultants and fact witnesses concerning same. Similarly, the PSC had already commenced working with economic and accounting experts regarding the macro-economic conditions and context within which the Spill occurred, particularly with respect to the oil and gas industry, as well as the potential damage models and loss projections that might be associated with the specific individual selected OPA Test Cases. 196 See Rec. Doc Rec. Doc Page 73

74 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 74 of 141 The PSC had continued to work with mapping experts and others to identify the specific areas affected by surface oil and other clean-up and response efforts. And, finally, the PSC had already started to review all of the Phase One, Phase Two, and Phase Three evidence for potential relevance or use in the OPA Test Cases. Once the Scheduling Order was entered, the Common Benefit Attorney team assembled for a multi-day intensive planning session to crystalize the issues, theories, and strategies. It was decided that, once the Answers in the individual test cases were filed, issue would be joined, and Motion to Strike Affirmative Defenses could be filed in the context of specific factual allegations and concrete claims, and would thereby provide the Court with a potential opportunity to resolve core legal issues without any concerns about an alleged advisory opinion. These Motions and Reply Briefs were filed in July of 2014, 198 but were ultimately denied, without prejudice, as premature. Common Benefit Attorneys thereafter engaged in extensive discovery and continued expert preparation and development relating to both the common issues and the individual seven selected OPA Test Cases. Initial disclosures, document productions, and interrogatory responses were provided by all seven OPA Test Cases, followed by extensive documentary and electronic discovery relating to Bisso, Wadleigh, and Blake. Judge Shushan conducted frequent OPA Test Case Status Conferences. Most Bisso Depositions, all Wadleigh Depositions, and a few expert, consultant, and third-party factual depositions had been taken by March 10, 2016, when the OPA Test Cases were dismissed. In the meantime, the PSC continued to develop the expert and other associated testimony of Harold Asher, CPA (regarding case-specific damages), former Congressman Jimmy Hayes and former Congressional Staff Attorney Lee Foresgren (regarding OPA Legislative History and experience with previous spills), Dr. Richard Crowsey (mapping the extent of oil), and Capt. Hocks (authenticating Notices to Mariners), whose affidavits had already been submitted to BP, 198 Rec. Docs , Page 74

75 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 75 of 141 (and in some cases, had already been deposed), at the time of the dismissal as well as Dr. Jacobs, an economist. 199 Common Benefit Attorneys had also filed extensive briefs, addenda, and exhibits, on Plaintiffs Renewed Motion to Strike Affirmative Defenses and in Opposition to BP s Renewed Motion to Dismiss Moratoria and Permitoria Claims. 200 The PSC has attempted to pursue these causes of action in the U.S. Fifth Circuit, on appeal. 201 Other Common Benefit Efforts Common Benefit Attorneys also contributed significant time and effort to administrative and other tasks that were necessary, not only for the common and collective benefit of plaintiffs, but also for the overall management of the case, relative to all Parties, and to the Court. Such time and efforts included, among other things, coordination between and among the Plaintiff Steering Committee, Counsel for the U.S., Counsel for the States, Counsel for the Defendants, Special Master McGovern, Special Master Freeh, Magistrate Judges Shushan and Wilkinson, Claims Administrator Pat Juneau, Claims Administrator Matt Garrettson, Clams Administrator Mike Juneau, Fifth Circuit Conference Attorney Joe St. Amant, and the Liaisons to the Neutrals as well as various different business, industry, attorney, accountant, environmental, seafood, and other professional and/or advocacy groups, societies, and/or organizations; government and public officials and agencies; and members of the press. 199 Note that, subsequent to the dismissal, Dr. Crowsey s Affidavit and Maps have been widely circulated to Plaintiffs Attorneys and others for potential use in further litigation and/or settlement negotiations. In addition, the Notices to Mariners authenticated by Capt. Hooks and much of the work provided by Congressman Hayes, Mr. Foresgren, and others regarding OPA Legislative History and prior spills was summarized and made publicly available as Addenda to the Opposition to BP s Renewed Motion to Dismiss, Rec. Docs , Rec. Docs , 15704, See Rec. Doc (Notice of Appeal), docketed as U.S. Fifth Cir. No Page 75

76 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 76 of 141 Common Benefit Attorneys coordinated with individual plaintiff attorneys with respect to motions and briefs on legal and administrative issues, in many cases assisting with the filings. The PSC contributed to a Master Claims Database, and assisted the plaintiffs and the Court with the establishment of a B3 Protocol relating to the clean-up and responder defendants (Pre-Trial Order No. 57), 202 and the Pre-Trial Order No. 60 process. 203 The Fee Committee Review Process under Pre-Trial Order No. 59 From the time Pre-Trial Order No. 9 was entered on October 8, 2010, through December 31, 2015, a total of 107 Common Benefit Firms submitted over 585,000 hours, and over $7 million in Held Expenses, as well as $37.5 million in Shared Expenses, accepted by the Courtappointed CPA Phil Garrett, on a monthly basis. 204 On July 15, 2015, the Court entered Pre-Trial Order No. 59, which required Common Benefit Attorneys to audit their time and expense submissions, and to delete any and all submissions that might have been related to individually represented clients, as opposed to common benefit, duplicative, or otherwise inappropriate See, e.g., Rec. Docs. 5718, 6143, 6192, 6247, 6696, 13158, 13667, 15711, 15723, See Rec. Doc (Pre-Trial Order No. 60). See also, e.g., Rec. Doc (PSC Certification to motion by certain plaintiffs for reconsideration), Rec. Doc (PSC Motion to Extend Deadline for Pro Ses), Rec. Doc (Joint Motion to Amend Pre-Trial Order No. 60), and Rec. Doc (Show-Cause Order). 204 GARRETT AFFIDAVIT (July 10, 2016) 12; HERMAN-ROY DECLARATION (July 14, 2016) See PRE-TRIAL ORDER NO. 59 [Rec. Doc ] (July 15, 2015), at pp.4-6, (See also FIRST AMENDMENT TO PTO 59 [Rec. Doc ] (Feb. 3, 2016) (extending the Initial Cut-Off Date thru December 31, 2015), and THIRD AMENDMENT TO PTO 59 [Rec. Doc ] (June 2, 2016) (clarifying deadlines, and authorizing the review and inclusion of time and expenses submitted after December 31, 2015)) [A second amendment to Pre- Trial Order No. 59 allowed common benefit cost and/or fee applicants to waive their in-person Fee Committee Interviews in cases where they had submitted relatively few hours and/or expenses.] Page 76

77 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 77 of 141 Pursuant to this process, Common Benefit Firms audited their time and expense submissions, and reduced their time by 26,583 hours, while also eliminating over $120,000 in Held Expenses that had been previously claimed. 206 The Fee Committee and Special Counsel reviewed the time submissions, as well as the Fee Affidavits and Memos submitted by the Common Benefit Firms, 207 and conducted interviews with a representative of each Common Benefit Firm. 208 The Fee Committee conducted 74 interviews, for a total of 12 business days, over the course of which an additional 6,218 hours and approximately $44,200 in Held Costs were voluntarily withdrawn. 209 Based on its review of the time submissions, together with the affidavits and interviews, the Fee Committee feels confident that a minimum of 518,250 hours were reasonably expended thru the end of 2015 for the common benefit of class members and others affected by the Deepwater Horizon Incident, in accordance with the Court s directives in Pre-Trial Order No. 9 and Paragraph 10 of Pre-Trial Order No When the 8,831 hours submitted and accepted 206 GARRETT AFFIDAVIT, 13; HERMAN-ROY DECLARATION, 118, 120 and fn See Pre-Trial Order No. 59, and Exhibit A. 208 Paragraph 29 of Pre-Trial Order No. 59 was amended to allow firms submitting less than 250 hours to waive the Fee Interview, and rely solely upon their time submissions and Fee Affidavits. See AMENDMENT TO PTO 59 [Rec. Doc ] (March 22, 2016). 209 HERMAN-ROY DECLARATION, 120 and fn.163. (The Fee Committee continues to follow up with Common Benefit Attorneys regarding voluntary withdrawals of Held Costs and/or hours.) 210 See HERMAN-ROY DECLARATION The Fee Committee and Special Counsel believe that this number of hours is extremely conservative, not only in terms of evaluating the 585, originally accepted hours in light of the terms and requirements of the Court s Pre-Trial Orders, but also because the 527,081 hours, (i.e. the 518,250, plus the accepted Jan-April 2016 hours discussed infra), does not include: (a) the thousands of hours expended by full-time PSC-employed attorneys Rob Warren ( ) and Dennis Rawlins ( ) and paralegal Cristina Herrington ( ); (b) the thousands of hours expended by appellate and other special counsel, such as Samuel Issacharoff, Basile Uddo, and Irwin Fritchie, who were hired by the PSC, and compensated out of the common benefit shared expense assessments; (c) additional 2016 hours which have not yet been formally submitted and/or accepted; and (d) hours that were reasonably and necessarily expended by Common Benefit Attorneys, but, due to oversight or mistake, were not submitted timely, and therefore were rejected by Mr. Garrett. (Common Benefit Attorneys have, of course, as a practical matter, already been reimbursed for most of the attorneys fees expended in connection with the work performed by outside counsel and PSC employees as part of the interim Shared Expense reimbursements, for which final approval is now sought. Nevertheless, as the Court is attempting to assess the true level of attorney and paralegal hours that were necessary to advance the common benefit effort in this case, it seems appropriate to note that such additional hours were expended on behalf of classmembers, albeit on a guaranteed monthly and non-contingent basis.) Page 77

78 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 78 of 141 thru April of 2016 are added, 211 petitioners have dedicated at least 527,081 common benefit hours. 212 When the $79, accepted 2016 Held Costs (thru April 2016) are factored in, 213 the total potential Common Benefit Held Costs claimed to date are $7,187, The U.S. Fifth Circuit Has Endorsed a Percentage-of-Benefit Method for Awarding Common Benefit Fees, with an Abbreviated Lodestar Crosscheck For well over a century, the Supreme Court has recognized consistently that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney s fee from the fund as a whole. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). 214 Under this common fund doctrine a private plaintiff, or plaintiffs attorney, whose efforts create, discover, increase, or preserve a fund to which others also have a claim, is entitled to recover from the fund the costs of his litigation, including attorneys fees. In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 227 n.10 (5th Cir. 2008) (quoting In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 820 n.39 (3d Cir.), cert. denied, 516 U.S. 824 (1995)). Accordingly, where a class action results in a recovery that has monetary value for class members, the attorneys whose efforts contributed to that recovery are entitled to payment of a reasonable fee from the recovery 211 See GARRETT AFFIDAVIT See HERMAN-ROY DECLARATION, See GARRETT AFFIDAVIT This principle, expressed in the High Court s Boeing decision, was derived from the following line of Supreme Court authority: Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 257 (1975); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 393 (1970); Sprague v. Ticonic Nat l Bank, 307 U.S. 161, (1939); Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, (1885); Trustees v. Greenough, 105 U.S. 527, (1881). Page 78

79 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 79 of 141 proceeds. 215 See, e.g., In re Continental Illinois Sec. Litig., 962 F.2d 566, 568 (7th Cir. 1992) ( Having employed their professional skills to create a cornucopia for the class, the lawyers for the class were entitled under the principles of restitution to suitable compensation for their efforts ); Klein v. O Neal, Inc., 705 F. Supp. 2d 632, 673 (N.D. Tex. 2010) ( The use of a common fund to pay attorney s fees in class action settlements is well established ); In re Vioxx Prods. Liab. Litig., 760 F.Supp.2d 640, 647 (E.D. La. 2010) (the equitable common fund doctrine was originally, and perhaps still is, most commonly applied to awards of attorneys fees in class actions ); Turner v. Murphy Oil, 472 F.Supp.2d 830, (E.D. La. 2007) (quoting 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions 13:76 (4th ed. 2002)) ( When a plaintiff in an individual or representative capacity creates, increases, or preserves a fund by settlement or judgment, which benefits an ascertainable class, the court in exercising its equity jurisdiction, may grant class counsel fees by directing payment from the fund ); Eldon E. Fallon, Common Benefit Fees in Multi-District Litigation, 74 LA. L. REV. 371 (2014). Rule 23(h) of the Federal Rules of Civil Procedure specifically recognizes these principles, providing that, where a case is certified as a class action, the court may award reasonable attorneys fees and nontaxable costs authorized by law or by agreement of the parties. Fed. R. Civ. P. 23(h). While the Fee Agreement with BP alone or in combination with the Common Fund Doctrine justifies the award of common benefit fees to the petitioners and establishes the upper limit of any such award, the district court is required to independently analyze the reasonableness 215 The common fund principle also supports the assessment of recoveries by individual plaintiffs in multidistrict litigation and the award of attorneys fees from the fund created by such assessments to compensate the attorneys appointed by the transferee court to assist in management of the litigation for the benefit of the plaintiffs subject to such MDL proceedings. See, e.g., In re Diet Drugs Prods. Liab. Litig., 582 F.3d 524, (3d Cir. 2009); In re Vioxx Prods. Liab. Litig., 760 F.Supp.2d 640, (E.D. La. 2010). A district court s power to assess recoveries of MDL plaintiffs and to make an award of attorneys fees from the pool of such assessments is also a necessary incident of its inherent management authority a court s power to manage consolidated litigation implies a corollary authority to appoint lead, liaison and other common benefit attorneys and to compensate them for their service. See, e.g., ORDER AND REASONS (Dec. 28, 2011) [Rec. Doc. 5022] pp.1-2; citing Air Crash Disaster at Florida Everglades, 549 F.2d 1006, (5th Cir. 1977); see also, e.g., Diet Drugs, 582 F.3d at Page 79

80 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 80 of 141 of the requested attorneys fees. See, e.g., High Sulfur, 517 F.3d at ; Strong v. BellSouth Telecommunications, Inc., 137 F.3d 844, (5th Cir. 1998); Evans v. TIN, Inc., No , 2013 WL at *5 (E.D. La. 2013). As the Fifth Circuit Court of Appeals has explained: The district court s close scrutiny of fee awards serves to protect the nonparty members of the class from unjust or unfair settlements affecting their rights as well as to minimize conflicts that may arise between the attorney and the class, between the named plaintiffs and the absentees, and between various subclasses. High Sulfur, 517 F.3d at 228 (citations omitted). 216 For the district courts within the jurisdiction of the Fifth Circuit, the reasonableness of any fee award is adjudicated by reference to the twelve factors first identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974); see also Union Asset Management Holding A.G. v. Dell, Inc., 669 F.3d 632, 642 (5th Cir.), cert. denied, 133 S. Ct. 317 (2012) ( Fifth Circuit law requires that when reviewing an attorneys fee award for abuse of discretion, this Court must determine whether the record clearly indicated that the district court has utilized the Johnson framework as the basis of its analysis ). While the Johnson Factors represent the considerations that necessarily inform the fee- adjudication process they do not, in and of themselves, furnish a methodology by which those considerations can actually be used to compute a fee award. The Courts have articulated two distinctly different computational approaches to the award of reasonable counsel fees the 216 While Petitioners believe that District Court approval of the fee award is necessary and appropriate under both Rule 23 and the terms of the Fee Agreement, it should be noted that the present fee petition is somewhat distinguishable and unique. Most commonly, the request for payment of class counsel or other common benefit fees is considered together with the question of settlement approval, and, as reflected in the above-quoted language, provides protections to the members of the class. In this case, by contrast, the settlements have already been fully and finally approved as fair, reasonable, and adequate to the members of the class. The Court has therefore already conclusively determined that the settlement classes and their members have been adequately represented and protected by Class Counsel, and the approval or non-approval of the instant fee petition could not possibly have any direct or indirect effect upon any member of either class. Page 80

81 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 81 of 141 percentage-of-benefit method and the lodestar method. See, e.g., Union Asset, 669 F.3d at Under the percentage-of-benefit method, the court awards fees as a reasonable percentage of the common fund. Union Asset, 669 F.3d at 643. Accord, e.g., Vioxx, 760 F.Supp.2d at 650 (using the percentage method the Court compensates attorneys who recovered some identifiable sum by awarding them a fraction of that sum ). Under the lodestar method, the court multiplies the reasonable number of hours by a reasonable hourly rate, and then adjusts upward or downward by a numeric multiplier to account for the court s evaluation of the Johnson factors. See, e.g., Union Asset, 669 F.3d at ; In re Fender, 12 F.3d 480, 487 (5th Cir.), cert. denied, 511 U.S (1994). From the time the Supreme Court announced its decision in 1885 in Central R.R. & Banking Co. v. Pettus, courts typically based fee awards in common benefit cases on a reasonable percentage of the fund. See Pettus, 113 U.S. at 127; REPORT OF THE THIRD CIRCUIT TASK FORCE: COURT AWARDED ATTORNEY FEES, 108 F.R.D. 237, 242 (1985) ( Task Force Report ); Herbert B. Newberg, ATTORNEY FEE AWARDS, 2.02 at 31 (1986); Arenson v. Board of Trade of City of Chicago, 372 F.Supp. 1349, 1357 n.14 (N.D. Ill. 1974). Use of the percentage method to award attorneys fees abruptly came to an end in 1973 with the Third Circuit s decision in Lindy, 217 in which the court required the use of the lodestar method in both common fund and statutory fee-shifting cases. TASK FORCE REPORT, 108 F.R.D. at 242. The lodestar approach to fee awards from a common fund was rapidly adopted by several of the Circuits. The courts, however, rapidly recognized that pursing this path had been a mistake. Less than a dozen years after Lindy, the lodestar methodology lost substantially all of its vitality as a 217 Lindy Bros. Builders Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 168 (3d Cir. 1973). Page 81

82 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 82 of 141 rule of decision for awarding fees in common fund cases, and the percentage method regained its ascendancy as the prevailing template for attorneys fee awards. AWARDING ATTORNEYS FEES AND MANAGING FEE LITIGATION at (Fed. Jud. Ctr. 1994). Two reasons explain this impressive judicial turnabout. First, the Supreme Court s decision in Blum v. Stenson led the courts to question the legal underpinnings for the use of the lodestar rule in common fund cases. In Blum s often-quoted footnote 16, the Court stated that, under the common fund doctrine...a reasonable fee is based on a percentage of the fund bestowed on the class... Blum, 465 U.S. at 900 n.16. See also Task Force Report, 108 F.R.D. at (discussing Blum footnote 16); Camden I Condominium Ass n, Inc. v. Dunkle, 946 F.2d 768, 771 (11th Cir. 1991) (same); In re Unisys Corp. Retiree Medical Benefits ERISA Litig., 886 F. Supp. 445, 458 (E.D. Pa. 1995) ( The 1980s witnessed another major change in the determination of attorneys fees in common fund cases. This change was sparked by... the Supreme Court in Blum v. Stenson... ). Second, a decade of experience led the courts to conclude that the legal cure prescribed by Lindy actually did more harm than good. Ironically, this view was first crystallized by the Third Circuit itself in a 1985 report issued by a Task Force appointed by the Court to develop[] recommendations to provide fair and reasonable compensation for attorneys in those matters in which fee awards are provided by federal statute or by the fund-in-court doctrine... TASK FORCE REPORT, 108 F.R.D. at 238. The Third Circuit Task Force, together with the courts and academics, noted a wide range of inequities that attended the use of the lodestar approach in common fund matters, which would be ameliorated by a return to the percentage methodology: Recommending the use of the percentage method when a common settlement fund is created, the influential Third Circuit Task Force s Report determined that a lodestar approach (1) increases the workload of an already overtaxed judicial system ; (2) is Page 82

83 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 83 of 141 insufficiently objective and produce[s] results that are far from homogenous ; (3) creates a sense of mathematical precision that is unwarranted in terms of the realities of the practice of law ; (4) is subject to manipulation by judges who prefer to calibrate fees in terms of percentages of the settlement fund or the amounts recovered by the plaintiffs or of an overall dollar amount ; (5) encourages lawyers to expend excessive hours,... engage in duplicative and unjustified work, inflate their normal billing rate, and include fictitious hours or hours already billed on other matters, perhaps in the hope of offsetting any hours the court may not allow ; (6) creates a disincentive for early settlement of cases ; (7) does not provide the district court with enough flexibility to reward or deter lawyers to that desirable objectives, such as early settlement will be fostered ; and (8) works to the particular disadvantage of the public interest bar by undermining the efficacy of many of the fee statutes that Congress has enacted because the lodestars in the money cases, such as securities, are set higher than in cases under statutes promoting nonmonetary social objectives such as the Civil Rights Attorneys Fees Awards Act of In re Enron Corp. Sec., Derivative & ERISA Litig., 586 F.Supp.2d 732, (S.D. Tex. 2008) (citing and quoting Task Force Report, 108 F.R.D. at ) (footnotes and emphasis omitted). See also Union Asset, 669 F.3d at 643 ( The percentage method brings certain advantages. The district court in this case selected it over the lodestar method in part because it allows for easy computation [and] it aligns the interests of class counsel with those of the class members. ); Burford v. Cargill, Inc., No , 2012 WL at *1 (W.D. La Nov. 8, 2012) ( the percentage method [is] the most sensible approach in this matter because it is predictable, encourages settlement, and reduces incentives for protracted litigation ); Vioxx, 760 F.Supp.2d at ( courts find that the percentage method provides more predictability to attorneys and class members or plaintiffs, encourages settlement, and avoids protracted litigation for the sake of racking up hours, thereby reducing the time consumed by the court and the attorneys ); In re Cabletron Systems, Inc. Sec. Litig., 239 F.R.D. 30, 37 (D.N.H. 2006) (stating that the percentage method allows courts to award fees from the fund in a manner that rewards Page 83

84 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 84 of 141 counsel for success and penalizes it for failure. ); In re Educational Testing Service Praxis Principles of Learning and Teaching: Grades 7-12 Litig., 447 F.Supp.2d 612, (E.D. La. 2006) (citations omitted) ( The lodestar method has been under increasing criticism because of the practical difficulties in applying it. The method has been called difficult to apply, timeconsuming to administer, inconsistent in result, and capable of manipulation. Furthermore, the lodestar method creates inherent incentive to prolong the litigation until sufficient hours have been expended ) (internal quotations and citations omitted); In re Catfish Antitrust Litig., 939 F.Supp. 493, (N.D. Miss. 1996) ( The lodestar method makes considerable demands upon judicial resources since it can be exceptionally difficult for a court to review attorney billing information over the life of a complex litigation and make a determination about whether the time devoted to the litigation was necessary or reasonable. Resolution of other cases on this court s already crowded docket would be severely delayed if the court had to attack such an administrative behemoth ) (citations omitted); Vaughn R. Walker & Ben Horwich, The Ethical Imperative of a Lodestar Cross-Check: Judicial Misgivings About Reasonable Percentage Fees in Common Fund Cases, 18 GEO. J. LEGAL ETHICS 1453, (2005) ( Lodestar Cross- Check ). For these reasons and others, the vast majority of Courts of Appeal, including the U.S. Fifth Circuit, have approved of (or, in some cases, mandated) the use of the percentage method to award attorneys fees in common fund cases. Union Asset, 669 F.3d at 644 ( the Fifth Circuit has never reversed a district court judge s decision to use the percentage method, and none of our cases preclude its use. To be clear, we endorse the district courts continued use of the percentage method cross-checked with the Johnson factors ); see also, e.g., In re Thirteen Appeals Arising out of San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 307 (1st Cir. Page 84

85 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 85 of ); In re Cendant PRIDES, 243 F.3d 722, 732 (3rd Cir.), cert. denied, 534 U.S. 889 (2001) ( The percentage-of-recovery method is generally favored in cases involving a common fund... ); Rawlings v. Prudential-Bache Properties, Inc., 9 F.3d 513, (6th Cir. 1993) (noting the recent trend towards adoption of a percentage-of-the-fund method, and permitting use of this method in common fund cases); Continental Illinois, 962 F.2d at 572 (fee award should not be based on individual hours, but rather on the percentage that counsel would have received had they handled a similar suit on a contingent fee basis, with a similar outcome, for a paying client ); Johnston v. Comerica Mortg. Corp., 83 F.3d 241, 246 (8th Cir. 1996); In re Washington Public Power Supply System Sec. Litig. ( WPPSS ), 19 F.3d 1291, 1296 (9 th Cir. 1994); Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990) ( a reasonable fee under the common fund doctrine is calculated as a percentage of the recovery ); Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989) (endorsing use of percentage approach); Gottlieb v. Barry, 43 F.3d 474, 483 (10th Cir. 1994); Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir.), cert. denied, 488 U.S. 822 (1988) ( a fee award based on a percentage of a common fund is appropriate); Camden I Condominium Ass n, Inc. v. Dunkle, 946 F.2d 768, 774 (11th Cir. 1991); Swedish Hospital Corp. v. Shalala, 1 F.3d 1261, 1271 (D.C. Cir. 1993) (requiring application of the percentage-ofbenefit method in common fund cases). Indeed, virtually all of the recent common fund fee awards made by the district courts within the Fifth Circuit have utilized the percentage method to award fees in common fund cases. See, e.g., In re FEMA Trailer Formaldehyde Products Liab. Litig., MDL No , 2013 WL , *3 (E.D. La. May 2, 2013); Burford, supra, 2012 WL at *1; In re OCA, Inc. Sec. and Derivative Litig., No , 2009 WL at *19 (E.D. La. Mar. 2, 2009); Page 85

86 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 86 of 141 Enron, 586 F.Supp.2d at 766, 778; Murphy Oil, 472 F.Supp.2d at ; In re Bayou Sorrel Class Action, No , 2006 WL at *3 (W.D. La. 2006); Educational Testing, 447 F.Supp.2d at ; Batchelder v. Kerr-McGee Corp., 246 F.Supp.2d 525, 531 (N.D. Miss. 2003); In re Combustion, Inc., 968 F.Supp. 1116, (W.D. La. 1997); Catfish, 939 F.Supp. at Accordingly, we respectfully submit that this Court should use the percentage method to adjudicate the petition for an award of fees in the present litigation. The Fee that BP Agreed to Pay is Reasonable under the Percentage-of-Benefit Method Under the percentage-of-benefit method the court awards fees as a reasonable percentage of the common fund. Union Asset, 669 F.3d at 643. Accord, e.g., Vioxx, 760 F.Supp.2d at 650 (using the percentage method the Court compensates attorneys who recovered some identifiable sum by awarding them a fraction of that sum ); Murphy Oil, 472 F.Supp.2d at 859 (fees awarded as a percentage of the common fund ). As deployed by the district courts within the Fifth Circuit, the percentage of benefit method is effectively a four-step process: First, in order to award a percentage of a fund, it is obviously necessary to know the value or amount of the benefits. For this purpose the settlement fund is considered to be equivalent to the actual monetary value conferred to the class members by the settlement. Burford, supra, 2012 WL at *1. Accord, e.g., Vioxx, 760 F.Supp.2d at 652 ( the Court will first determine the valuation of the benefit received by the claimants ); In re Heartland Payment Systems, Inc. Customer Data Security Breach Litig., 851 F.Supp.2d 1040, 1075 (S.D. Tex. 2012); Murphy Oil, 472 F.Supp.2d at Second, [t]he court then sets the benchmark percentage to be applied to this value. Heartland, 851 F.Supp.2d at Accord, e.g., Burford, 2012 WL at *1 (same); Page 86

87 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 87 of 141 Vioxx, 760 F.Supp.2d at 652 ( [t]he [second] task is to determine an initial benchmark percentage ); Murphy Oil, 472 F.Supp.2d at 862; Educational Testing, 447 F.Supp.2d at 629 ( Many courts begin their fee analysis by determining an initial benchmark percentage, which they then adjust for the particular circumstances of the case. ). Third, [a]fter setting the benchmark [percentage to be applied to the fund value,] the court appli[es] the Johnson factors to determine whether a positive or negative adjustment of the benchmark [i]s warranted. See, e.g., Heartland, 851 F.Supp.2d at 1075 (citation omitted). Accord, e.g., Murphy Oil, 472 F.Supp.2d at 864 ( The Court will now consider the various Johnson factors to determine whether an adjustment to the initial benchmark percentage is warranted ); Vioxx, 760 F.Supp.2d at 655 ( It is now appropriate to test this [initial benchmark] percentage in the crucible of the Johnson factors to determine whether an adjustment, upwards or downwards, is in order ); Educational Testing, 447 F.Supp.2d at 630 ( The Court will next determine whether the benchmark should be adjusted based on the particular circumstances of this case. In doing so, the Court will consider the other Johnson factors ); Evans, 2013 WL at *7 (The Court will proceed to consider whether this benchmark should be adjusted upwards or downwards based on an analysis of the Johnson factors ). Fourth, while not technically required by the percentage-of-benefit method, several courts that award fees as a percentage of the settlement fund perform an abbreviated lodestar crosscheck to test whether the tentative percentage award derived through application of the foregoing percentage award principles is a reasonable one or whether it results in an arguable or perceived windfall over the reasonable value of the work performed. Vioxx, 760 F.Supp.2d at 658 (citing In re Diet Drugs, 553 F.Supp.2d 442, (E.D. Pa. 2008), aff d, 582 F.3d 524 (3d Cir. 2009)). Accord, e.g., Murphy Oil, 472 F.Supp.2d at ( many courts began to use the Page 87

88 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 88 of 141 lodestar method as a cross-check on the percentage method for reasonableness. [A] lodestar analysis which is rough and more abbreviated is appropriate for a cross check ) (citing, inter alia, In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 306 (3rd Cir. 2005)); Enron, 586 F.Supp.2d at ( The purpose of a lodestar cross-check of the results of a percentage fee award is to avoid windfall fees, i.e., to ensure that the percentage approach does not lead to a fee that represents an extraordinary lodestar multiple ) (quoting In re Cendant Corp. Sec. Litig., 264 F.3d 201, 285 (3rd Cir. 2001) ( Cendant I ), cert. denied, 535 U.S. 929 (2002) and In re Cendant Corp. Sec. Litig., 404 F.3d 173, 188 (3rd Cir. 2005) ( Cendant II )); Heartland, 851 F.Supp.2d at 1086 (same). The Value of the Benefits to the BP Classes Is Likely to Exceed $13 Billion The value of a settlement fund includes all monetary amounts actually paid or (irrevocably deposited into a fund for payment) to or for the benefit of class members pursuant to the terms of the class settlement. See, e.g., Murphy Oil, 472 F.Supp.2d at 861 (settlement fund includes amounts paid to compensate class members directly ); Vioxx, 760 F.Supp.2d at 652 (settlement value equal to a $4.85 billion fund [created] for the compensation of Vioxx claimants ). Where the settlement provides benefits on a pay-as-you-go basis over a period beyond the point that a common benefit fee is to be awarded, the settlement fund also includes a reasonable estimate of the amount of future payments that will be made to claiming class members. In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 334 (3d Cir. 1998), cert. denied, 525 U.S (1999) (the percentage-of-benefit method requires that the court first make a reasonable estimate of the value of the settlement); G.M., supra, 55 F.3d at 822 ( At the very least, the district court... needs to make some reasonable assessment of the settlement s value and determine the precise percentage represented by the attorneys fees ); Page 88

89 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 89 of 141 Murphy Oil, 472 F.Supp.2d at 861 (settlement value includes an estimated $20,000,000 in future remediation costs ). In addition, the fund amount necessarily includes the monetary value of all intangible benefits provided to class members. Wing v. Asarco, Inc., 114 F.3d 986, 990 (9th Cir. 1997) (estimating value of a settlement that included non-monetary medical monitoring benefits); G.M. Truck, 55 F.3d at 822 (requiring court to calculate the value of intangible contract rights provided by class settlement and award fees as a percentage of that value); Camden I Condominium Ass n, Inc. v. Dunkle, 946 F.2d 768, 775 (11th Cir. 1991) ( factors which will impact upon [fee award include] any non-monetary benefits conferred upon the class by the settlement ); In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 373 (S.D. Ohio 1990) (recognizing importance of significant non-monetary benefits in awarding common benefit fees); Cullen v. Whitman Medical Corp., 197 F.R.D. 136, 147 (E.D. Pa. 2000) (finding it appropriate, in valuing a settlement under the percentage-of-recovery methodology, to include value of non-monetary benefits such as debt forgiveness); cf. Strong v. Bellsouth Communications, Inc., 173 F.R.D. 167, 170, 172 (W.D. La. 1997), aff d, 137 F.3d 844 (5th Cir. 1998) (acknowledging that the settlement s value includes additional intangible benefits to the class, such as the economic value of market education, but concluding those benefits were insubstantial in that case, i.e., they were worth an additional $281,405.60). Because the costs of notice and settlement administration are each essential to facilitate the delivery of benefits to class members, the value of the settlement also includes those costs. Staton v. Boeing Co., 327 F.3d 938, 975 (9th Cir. 2003) ( The post-settlement cost of providing notice to the class can reasonably be considered a benefit to the class. [W]here the defendant pays the justifiable cost of notice to the class it is reasonable to include that cost in a putative Page 89

90 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 90 of 141 common fund benefiting the plaintiffs for all purposes, including the calculation of attorneys fees. ); Burford, 2012 WL at *1 ( Th[e] valuation amount includes administrative costs and attorneys fees, which are generally viewed as an aspect of the class recovery ); Schulte v. Fifth Third Bank, 805 F.Supp.2d 560, 569 & n.8, 597 (N.D. Ill. 2011); Serrano v. Sterling Testing Systems, Inc., 711 F. Supp. 2d 402, 419 (E.D. Pa. 2010); Heartland, 851 F.Supp.2d at 1078 ( Courts often include the costs of notice in valuing a class-action settlement. District Courts routinely include such administrative costs in calculating attorneys fees awards ). Finally, when, as here, the settlement calls for the defendant to fund the payment of attorneys fees to class counsel, it relieves the class of the burden of paying those fees from the recovery otherwise available to class members. As such, where a class settlement contains a provision that obliges the defendant to fund the payment of attorneys fees to class counsel up to a specified amount, that amount is properly included in the value of the settlement for fee award purposes. See, e.g., Johnston, 83 F.3d at 246 ( The award to the class and the agreement on attorney fees represent a package deal. Even if the fees are paid directly to the attorneys, those fees are still best viewed as an aspect of the class recovery ); G.M., 55 F.3d at 802 (noting that the first edition of the MANUAL FOR COMPLEX LITIGATION provided that fees paid by the defendant(s) are properly part of the settlement funds ); Prudential, 148 F.3d at 330 n.99 ( although the class settlement and the attorneys fee award were negotiated independently, [defendant] was responsible for both and therefore they are drawn from the same fund ); Heartland, 851 F.Supp.2d at 1078 (quoting Johnston, 83 F.3d at 246); In re Domestic Air Transportation Antitrust Litig., 148 F.R.D. 297, 354 (N.D. Ga. 1993) ( the Court rejects the argument that the calculation of the value of the common fund should exclude all cash used to pay attorneys fees and the expenses of the claims administration ); Vista Healthplan, Inc. v. Page 90

91 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 91 of 141 Warner Holdings Co. III, 246 F.R.D. 349, 364 (D.D.C. 2007) (explaining that because the attorneys fees are borne by defendants and not plaintiffs, they represent a valuable part of the settlement ). In this case, the BP Class Settlements to-date have secured irrevocable compensation and other benefits of approximately $8,431,832,954, which includes $7,552,132,954 in Economic Claims Payments (thru May 24, 2016), approximately $634 million remaining in the Seafood Compensation Fund for further distribution, a total of $12.73 million in Medical SPC payments (thru March 24, 2016), $57 million in Tourism and Seafood Promotional Grants, $82,170,000 in Transocean Insurance Proceeds being held in trust, and approximately $93,690,000 in medical grants as part of the GHROP program See STATISTICS FOR DEEPWATER HORIZON ECONOMIC & PROPERTY DAMAGES SETTLEMENT (May 24, 2016) [Exhibit 11] p.3; ORDER [Rec. Doc ] (Sept. 22, 2014); HERMAN-ROY DECLARATION 58-60, 67. This does not even include: (a) approximately $830 million in additional Eligibility Determinations (as of May 24, 2016) that have not yet been finalized and paid; (b) the approximately 74,000 Claims that are still in process and not yet determined; (c) the potential $338 million allocation for the Assigned Claims from the Halliburton/Transocean Settlements; (d) any of the considerable settlement-related Administrative Expenses; or (e) the up-to $600 million for reimbursement of litigation expenses and common benefit fees. Page 91

92 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 92 of 141 In terms of estimating the total class benefits, the operative projection at the time of settlement approval was BP s initial estimate of $7.8 billion for both the Economic and the Medical Class Settlements together. 219 With approximately 89,000 Economic Claims still in process, a number of Medical SPC claims, and a 21-year Periodic Medical Plan outstanding, there are a number of different estimates and projections about the total value of benefits that the Settlements are likely to provide which can safely be placed within the $10 billion to $13 billion range, with a reasonable projection of over $13 billion. Judge Wilkinson, for example, estimated the total claims payout at $ billion, noting his initial estimate of $ billion to $10.87 billion, extrapolating from Status Reports Nos. 37, 38 and 39; an estimate of $11.3 billion contained within BP s 2015 second quarter report; and a persuasive calculation submitted by counsel ranging from $10.7 billion to $12.1 billion by a group of attorneys representing Commercial Fishermen. 220 Notably, both the Commercial Fishermen s estimates of $ $12.1 billion and Judge Wilkinson s own estimate of $ billion appear to be based solely on projected Economic Claims payouts, and do not seem to include Seafood & Tourism Promotional Grants, Transocean Insurance Proceeds, the value of the Assigned Claims, Medical Settlement Benefits, Administrative Costs, or Common Benefit Litigation Expenses or Fees. 219 KLONOFF DECLARATION [Rec. Doc ] (Aug. 13, 2012) p.40 94; citing BP ANNUAL REPORT AND FORM 20-F (2011) p ALLOCATION AND REASONS [Rec. Doc ] (Dec. 11, 2015), at pp.14-16; citing Rec. Doc , at pp.2-3 (see also Rec. Doc (Tab 3)). Page 92

93 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 93 of 141 In a recent BP public disclosure from April of 2016, the company predicted that the Economic Settlement will be significantly higher than $12.9 billion. 221 In addition, the Medical Claims Administrator predicts that approximately $170 million are likely to be paid out from the BP Medical Benefits Settlement, including the $105 million in GHROP grants, approximately $63.5 million in SPC payments, and almost two million in periodic medical benefits. 222 While the Louisiana Attorney General and others suggested at the time of settlement approval that the BP Economic & Property Damages Settlement was simply a rebranded GCCF, 223 this was clearly not the case. Among other things, the Court-Supervised Settlement Program established by Common Benefit Attorneys within MDL No. 2179: Compensated class members for Coastal and Wetlands Property Damages, VoO Charter Compensation, Real Estate Sales Losses, Vessel Damage, Subsistence, and other damages which had not been typically compensated by the GCCF; Included RTP enhancements that are in virtually all cases equal to or greater than the multipliers under the GCCF stated methodology; Extended the Claims Filing Deadline from August 23, 2013 to June 8, 2015; and Provided classmembers with objective and transparent criteria that were administered by a truly independent Claims Administrator and Trustee, subject to supervision and enforcement by the Court BP FIRST QUARTER 2016 RESULTS (April 26, 2016) [Exhibit 12] p.18. While not clear from the BP disclosure, it is possible that this BP estimate includes either a to-date and/or a projected total Administration Costs (which might also include the $600 million in potential reimbursed litigation expenses and/or common benefit fees), in addition to the actual Claims payouts and grants. But such estimate presumably does not include the $82.2 million in Transocean Insurance Proceeds or the potential $338 million allocated to the BP Economic Class from the Halliburton/Transocean Settlements. 222 See HERMAN-ROY DECLARATION 67. These figures do not include approximately $85 million in Administrative Expenses to date, nor an additional projected $30-35 million more over the life of the program. 223 STATE OF LA. AMICUS BRIEF RE FINAL APPROVAL [No , Rec. Doc. 227] p See generally REPLY BRIEF IN SUPPORT OF FINAL APPROVAL [Rec. Doc. 7727] (Oct. 22, 2012) pp. ii-iii, 11-14, Page 93

94 Case 2:10-md CJB-JCW Document Filed 07/21/16 Page 94 of 141 As the Court previously noted, the Settlement Program actually improves upon the GCCF in a number of important ways, including that (i) it pays claims that the GCCF would not; (ii) its decisions are made pursuant to transparent and objective frameworks; (iii) its administrator was appointed by this Court; and (iv) its operations are designed to be claimantresponsive and claimant-friendly, and they are subject to the active supervision of this Court. In addition: The Court notes, in this regard, that numerous Objections and other filings have raised concerns and complaints with the GCCF, and would seem to contradict the claims by some objectors that the GCCF was somehow more favorable. Deepwater Horizon, 910 F.Supp.2d at ; 225 aff d, 739 F.3d at 814 (rejecting the Cobb Objectors arguments regarding claimants who supposedly would have been better off under the GCCF). As noted in a recent law review article, 226 the scope and level of compensation under the Economic Class Settlement greatly exceed that which had been provided under the GCCF: 225 Rec. Doc. 8138, at p Catherine M. Sharkey, The BP Oil Spill Settlements, Classwide Punitive Damages, and Societal Deterrence, 64 DEPAUL L. REV. 681, 702 (2015). While the law review article suggests that subsistence claims were compensated by the GCCF, at the time the Class Settlements were announced, the GCCF had only paid a total of $220,197 for subsistence losses. See GCCF STATUS REPORT (Feb. 10, 2012) [Exhibit 20] p.6. By contrast, the Settlement Program had, as of May 24, 2016, paid over $193 million, with an additional $42 million in Eligibility Determination, and thousands of claims still yet to be evaluated. See PROGRAM STATISTICS (May 24, 2016) [Exhibit 11] p.3 (Table 4, Line 10). Page 94